Law Office of John S. Palmer Attorney at Law

Estate Litigation: What, Like It's Hard?

Posted Monday, February 16, 2015 by John S. Palmer

Most wills in Washington include a provision stating that the estate is to be administered without court intervention. The will must still be filed with the court after the testator’s death, and an order issued appointing an executor; however, if the court determines that the estate is solvent, it loses jurisdiction to take any further action with respect to the estate unless the executor or an heir or creditor of the estate re-invokes it.

There are various ways to invoke the court’s jurisdiction to resolve a dispute involving a nonintervention estate. They include initiating a will contest or filing a petition to award part of the estate to a surviving spouse or child(ren) on the grounds that they were unintentionally omitted from the will. A surviving spouse and children may also petition for a cash award from the estate to help pay living expenses under the family support statute.

A petition may also be filed pursuant to Washington’s Trust and Estate Dispute Resolution Act (TEDRA), which permits any issue arising in the administration of an estate or trust to be resolved by mediation, arbitration, court order, or agreement of the parties; issues that may be resolved by a TEDRA petition include interpreting a vague provision in the will, removing and replacing the executor, requiring the executor to account for estate assets, or establishing the amount an executor may be paid.

If no petitions are brought, the executor may close the estate by simply filing a Declaration of Completion of Probate stating that administration is completed (i.e., all estate debts have been paid and the heirs have received their share of the remainder) and the estate is ready to be closed. The declaration must also state the total fees paid to the executor and any attorneys, appraisers, or accountants. A copy of the declaration must be provided to all heirs, who then have 30 days to file a petition requesting the executor to account for estate assets or for the court to review the fees charged; otherwise the fees will be deemed reasonable, the executor automatically discharged, and the Declaration of Completion will be deemed equivalent to a court order formally closing the estate.

Properly invoking the court’s jurisdiction to resolve an estate dispute can be tricky and a procedural misstep can result in dismissal of a claim before it is heard. For example in 2006 the Washington Supreme Court upheld the dismissal of a will contest; although the petitioner followed the procedural requirements of TEDRA, she failed to comply with additional requirements imposed by the will contest statutes. The court noted that TEDRA, in effect since 2000, supplements but does not supersede pre-existing statutes applicable to estates.

And just last month, the Court of Appeals held in Estate of Harder (decided January 6, 2015) that the heirs had lost the right to contest an executor’s fees by failing to file the petition required by RCW 11.68.110 within 30 days of the date the Declaration of Completion was filed. Although one of the heirs filed a notice authorized by TEDRA requesting mediation of the executor’s fees, the court reiterated that TEDRA supplements other statutes, but does not replace them. Therefore a party who gives notice of mediation under TEDRA to resolve a fee dispute after receiving a Declaration of Completion must still file the petition required by RCW 11.68.110 to invoke the court’s jurisdiction to resolve the matter, by mediation or otherwise.

If you have any questions or would like to schedule an appointment, please call us at (425) 455-5513, toll free at (877) 455-5513, or info@palmerlegal.com.