[WSBARP] TEDRA Question

Wed Jul 16 12:29:02 PDT 2014

I think you do need to get in new defendants, which means your best bet is
to get a new litigation guarantee to determine the defendants. If there's
no probate, I expect it'll be "heirs and devisees of [decedent]," under
RCW 11.04.250 <http://apps.leg.wa.gov/rcw/default.aspx?cite=11.04.250> ,
which is not a lot of help. It sounds like you know at least one of the
heirs, so you can name that person; do some due diligence to find others
but at some point if it's getting unreasonably difficult, the partition
process does allow naming of unknown persons, and service by publication.
See RCW 7.52.020
<http://apps.leg.wa.gov/rcw/default.aspx?cite=7.52&full=true#7.52.020> ,
RCW 7.52.050
<http://apps.leg.wa.gov/rcw/default.aspx?cite=7.52&full=true#7.52.050> .

If there's a probate, you can name the PR as defendant and no need to name
the actual heirs. It might be worth delaying amending your complaint to
find out if there will be a probate or not.

Re TEDRA--I think you're in a gray area on whether you need to re-file as
a TEDRA. My (theoretical, intellectual) position is that using the TEDRA
special judicial proceeding is only an optional, alternative procedure for
anything that could be handled in an ordinary lawsuit like a standard
partition action. But there's no case law that I'm aware of, and a judge
could rule otherwise. According to recent CLEs I've attended, most judges
really don't know TEDRA simply because even in King County, few judges
ever even see a TEDRA case go to trial. I know from experience that it's
easy for a judge to see all the complex, mandatory-sounding statutes in
RCW 11.96A and assume that it must be mandatory if an Estate is involved
in any way.

I think for a partition action you have a particularly strong argument
that TEDRA need not be followed, because you're plaintiff and the Estate
(or heirs) are defendant, and you started the lawsuit already and just
need to sub in proper defendants. But unfortunately my opinion has no case
law to back it up.

You don't need a probate to start a TEDRA, though--you can still caption
it as an estate, but I'd suggest doing a sub-caption with plaintiff and
defendants. If there's no probate, though, it's important to name all the
conceivable heirs as defendants, to make sure you extinguish all rights
flowing from the decedent.

One other consideration: If in addition to partition/sale of the land you
also want a money judgment or other compensation from the defendant, you
probably should file a creditor claim to preserve rights to collect money
from the estate. But if there is no probate, that is not really possible,
so the judgment ends up being against all heirs proportionate to their
interests (not joint and several). That is a big pain in the neck to try
to collect if there are more than two or three heirs. In some
circumstances it might be worth starting a probate with the plaintiff as
PR, if no one in the family is going to do it. Or recruit a professional
fiduciary like Partners In Care or someone to get the Estate going.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Clark, Catherine
Sent: Wednesday, July 16, 2014 10:36 AM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] TEDRA Question

All:

I represent a plaintiff in a partition action.   One of the defendants has
died during the pendency of the suit.

My thought is that we need to change the caption for the suit to name the
estate instead of the person.  I think I need also to file under TEDRA.

First, may I drag in the other defendant in the TEDRA action (who also
happens to be a beneficiary of the deceased)?

Second, does a probate need to be initiated by the Estate before a TEDRA
Action may be brought?

Thanks for your thoughts.

Catherine C. Clark

Law Office of Catherine C. Clark PLLC

701 Fifth Avenue, Suite 4105

Seattle, WA  98104

Phone:  (206) 838-2528

Fax: (206) 374-3003

Email:  cat at loccc.com

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As with all lists - let the reader beware! No warranties or
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
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