[WSBARP] From which assets are probate claims paid?

[Eric Nelsen]

See RCW 11.10.010<http://app.leg.wa.gov/RCW/default.aspx?cite=11.10&full=true#11.10.010>. First question is how the gifts of real property and personal property were made: are they both specific bequests, general gifts, or something else? If one is a specific bequest in the other is a general or residuary gift, then your problem is solved. But if they both fall into the same category, then the first sentence of the statute specifies that assets abate "without preference as between real and personal property." But see subsection 2, which walks it back if the Will appears to be intending something else, even if it doesn't expressly say one way or the other. So the grand answer is, as usual, "it depends." If you can make an argument from the structure of the Will to abate one asset in the same category over another, then that might be allowable.

Re classification of the gifts in the Will, see Washington Law of Wills and Intestate Succession, Ch. 5:

There are four types or classifications for gifts in a will: specific, general, demonstrative, and residuary.[1] The court in Martin v. Barger [2] stated with approval the following general definitions:[3]

  A specific legacy is a bequest of a specific article of the testator's estate, distinguished from all others of the same kind; as, for example, a particular horse, or piece of plate, or money in a certain purse or chest, a particular stock in the public funds, a particular bond or other instrument for the payment of money. Whether a legacy is specific depends wholly upon the language of the will ....

  The term "general" legacies comprises all those which are not either specific or demonstrative - that is, those which are not gifts of some identical article or fund forming part of the testator's estate, nor gifts of a sum payable out of such an identified fund. They are, therefore, rather gifts of amounts than of things or pieces of property specially described and identified ....

  Demonstrative legacies are a peculiar kind which partake of the nature of both specific and general legacies, and combine the advantages of each. Demonstrative legacies are bequests of sums of money, or of quantity or amounts having a pecuniary value and measure, not in themselves specific, but made payable primarily out of a particular designated fund or piece of property belonging, or assumed to belong, to the testator.

A gift often will be found to be demonstrative when that characterization will save it.[4]

In addition to the three classes of gifts quoted above, a fourth category, residuary gifts, is usually included, although it is itself a type of general gift. A residuary gift is one that covers the rest or remainder of the testator's property after all specific and general gifts, and after payment of debts, taxes, and expenses.[5]

Simple examples of the four categories set out above would be a specific gift of "my 1970 Cadillac," a general gift of "$1,000," a demonstrative gift of "$1,000, taken from my credit union account if available," and a residuary gift of "everything else I own."

Notes:

[1] In re Eagle's Estate, 5 Wn.2d 254, 105 P.2d 31 (1940); In re Doepke's Estates, 182 Wash. 556, 47 P.2d 1009 (1935); Martin v. Barger, 62 Wash. 672, 114 P. 505 (1911); Thomas E. Atkinson, HANDBOOK ON THE LAW OF WILLS §132 (2d ed. 1953); 6 William H. Page, PAGE ON THE LAW OF WILLS §48.1 (2003 ed.).

[2] 62 Wash. 672, 114 P. 505 (1911).

[3] The court was quoting from 3 John N. Pomeroy, A TREATISE ON EQUITY JURISPRUDENCE (3d ed. 1905).

[4] See Atkinson §132, at 735; id. §136, at 757.

[5] Id. §132.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rod Harmon
Sent: Tuesday, August 22, 2017 7:21 AM
To: WSBA Real Property Listserv
Subject: [WSBARP] From which assets are probate claims paid?

In solvent testate estate, decedent left his real property to one beneficiary and his personal property to another beneficiary.   The will gives no direction whatsoever about payment of claims.  From which assets should PR pay the claims?  If there is a statute or case addressing this, I can't find it easily.

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com>
   rodharmon at msn.com<mailto:rodharmon at msn.com>




-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20170822/58b8d6f8/attachment.html>