Chapter B. Administration of Estates
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B.l.General Description
Washington estates may be administered within the control and supervision of the court or outside of that control ("nonintervention" administration). The choice in a testate estate is left to the testator. Absent a specific direction by the testator, however, there is a presumption that the testator intended his or her named personal representative to have the power to proceed without the intervention of the court.243 The personal representative of an intestate estate or one who was not the personal representative named in the will also may petition the court for nonintervention powers.244 The general subject of probate administration is beyond the scope of this work; only a basic overview of the administration process is set out below.245
In 1985, the legislature promulgated a comprehensive regime of judicial and nonjudicial dispute resolution, Chapter 11.96 RCW. As indicated above,246 the statute was subsequently replaced by an even more comprehensive scheme, the Trust and Estate Dispute Resolution Act of 1999 (TEDRA), Chapter 11.96A RCW. Because of its importance in the administration of estates (and trusts), TEDRA's key provisions will be set out before a brief discussion of administration.
B.2.Dispute Resolution Under TEDRA
B.2.a.General Provisions
TEDRA first provides a mechanism for the judicial proceedings concerning estates, trusts, and nonprobate assets.247 It addresses the plenary power of the court,248 subject matter jurisdiction,249 venue,250 court orders,251 statutes of limitation,252 persons entitled
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to proceedings under the title,253 the nature of the proceedings,254 procedural rules,255 and notice.256 It adopts the doctrine of virtual representation to increase the scope of personal jurisdiction over parties257 and provides for appointment of guardians ad litem.258 The section on costs and attorney fees supersedes most specific statutes elsewhere in Title 11 RCW;259 and brief provisions address jury trial,260 execution of judgments;261 and appellate review.262
B.2.b.Binding Agreement
Under a separate set of provisions, parties may enter into a binding written agreement regarding most (but not all) of the matters covered by TEDRA,263 and if it is filed with the court it becomes the equivalent of a final court order.264 The availability of such an agreement is supplemental to, and does not derogate from, any other available procedure the parties might employ.265 The court may, on petition, appoint a "special representative" for any interested person who is a minor, incompetent, incapacitated, unborn, unascertained, or of unknown identity or address.266 The special representative may then enter into a binding agreement with the other parties267 and may then present the agreement to the court.268 If it is so presented, the court determines whether the agreement adequately protects the interests of the parties
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represented by the special representative and, if not, the agreement is of no effect.269
B.2.c.Mediation and Arbitration
A final series of statutes sets out the procedures for "required mediation and arbitration" of disputes involving estates, trusts, and nonprobate matters.270 Any party may initiate the process, although the parties may agree not to be bound by any of the statute's requirements or rights.271
The statute contemplates mediation first,272 and then if that is unsuccessful or for some reason not required, the parties proceed to arbitration.273 The arbitrator's decision may be appealed and a trial de novo held; but if there is no timely appeal, the arbitration decision is conclusive and binding on all parties.274 Judicial proceedings are, then, only a last resort.
B.3.Nonintervention Administration
The innovative nonintervention procedure for the simplified administration of estates was first promulgated in this state by the territorial legislature in 1868.275 Whether the decedent died testate or intestate, once the estate has been found to be solvent276 and unless the testator has specified otherwise, the personal representative may petition the court for nonintervention powers.277 There are provisions for notice278 and objections279 and for replacement of the
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personal representative in case of death, resignation, disablement, or removal for dereliction of duty or breach of trust.280
The nonintervention executor281 may proceed to administer and distribute the estate without further supervision or approval of the court. He or she has the power to "borrow money on the general credit of the estate and may mortgage, encumber, lease, sell, exchange, convey, and otherwise have the same powers, and be subject to the same limitations of liability, that a trustee has ..., all without an order of court and without notice ..."282 The nonintervention executor still must (1) file notice, to all known heirs and beneficiaries of the will or of nonprobate assets, of the admission of the will and of the appointment of the executor;283 and (2) publish notice to creditors, to invoke the claims statute.284 Payment or compromise of creditors' claims can be made, however, without court approval or any involvement by the court other than the filing of the claim with the clerk.285 An inventory of assets must
If notice to creditors has not been given under Chapter 11.40 RCW, then it is mailed to the Department of Social and Health Services (DSHS) Office of Financial Recovery. RCW 11.28.237(2).
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be prepared within three months of the executor's appointment,286 but it need not be filed with the court. After that no further court action need be taken until the estate is closed. It is possible during a nonintervention administration for the executor to come into court for instructions or to resolve some dispute without subjecting the executor to the general jurisdiction of the court.287
The nonintervention executor has three choices in closing the estate: (1) submitting a final accounting and obtaining a decree of distribution, as in those estates without nonintervention powers;288 (2) obtaining a decree that adjudges claims to have been paid, determines heirship, and authorizes fees to be paid;289 and (3) filing a declaration of completion, representing that claims have been paid, heirs notified, and the estate administration completed, and listing the fees paid.290 Notice must be given to heirs, legatees, and devisees; and unless one of them petitions for review of fees or an accounting within 30 days, the executor is discharged and the declaration is treated as having the same effect as a final decree.291
B.4.Court-Supervised Administration
In contrast to the nonintervention executor, those executors without nonintervention powers are subject to court supervision for all of their managerial and distributive actions. All the same notices must be given as are required for nonintervention executors,292 and an inventory must be prepared within 90 days of appointment.293 But any action taken with respect to estate property must be done pursuant to court order. Therefore sales of property must be approved,294 creditors' claims must be allowed,295 partial distributions
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must be approved,296 and the estate must be closed following a full accounting to the court.297 The final report and petition for decree of distribution298 must identify the assets collected and the debts paid, the names of legatees and devisees, the condition of the estate, and the scheme of distribution. After notice is given to all interested parties299 and a hearing is held, the court approves the administration, allows claims of creditors, orders distribution of the estate, discharges the executor, and closes the estate.300
B.5.Affidavit Procedure for Small Estates
When a decedent dies leaving an estate subject to probate not in excess of $100,000, there is an informal procedure whereby the rightful successor to the decedent's "personal property" (defined in RCW 11.62.005(1) and including both tangible and intangible property) may obtain that property from whoever then holds it.301 Under Chapter 11.62 RCW, the "successor" to such personal property, including testate and intestate successors and surviving spouses entitled to their half of community property,302 need only file with the person in possession of the decedent's personal property (or indebted to the decedent) a proof of death and an appropriate affidavit to be entitled to receipt of the property303
The affidavit, which may be filed at any time after 40 days following the decedent's death, must contain several items, including statements that the decedent was a resident of Washington at the time of death;304 the claimant is a proper "successor"; the entire probate estate (not including the surviving spouse's one-half of community property) does not exceed in value $100,000, net of liens
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and encumbrances; no application for appointment of a personal representative is pending or has been granted; all debts of the decedent have been paid or provided for; the personal property in question is subject to probate; and proper written notice has been given to other successors.305 A copy of the notice is mailed to the DSHS office of financial recovery306
Payment by the recipient of the claim (the holder of the property) discharges the holder as if he or she had dealt with a personal representative unless the holder has knowledge of the falsity of any statement in the affidavit.307 If the holder refuses to transfer the property, an action may be brought to compel the transfer.308 If the holder is faced with two such affidavits from different alleged successors, he or she may either pay the first in time or interplead them.309 The claimant who receives the property is accountable for it to any personal representative of the decedent "or to any other person...
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