AN
ACT Relating to probate; amending RCW 11.02.005, 11.07.010, 11.18.200,
11.28.240, 11.28.270, 11.28.280, 11.40.010, 11.40.020, 11.40.030, 11.40.040,
11.40.060, 11.40.070, 11.40.080, 11.40.090, 11.40.100, 11.40.110, 11.40.120,
11.40.130, 11.40.140, 11.40.150, 11.42.010, 11.42.020, 11.42.030, 11.42.040,
11.42.050, 11.42.060, 11.42.070, 11.42.080, 11.42.090, 11.42.100, 11.42.110,
11.42.120, 11.42.130, 11.42.140, 11.42.150, 11.44.015, 11.44.025, 11.44.035,
11.44.050, 11.44.070, 11.44.085, 11.44.090, 11.48.130, 11.68.050, 11.68.060,
11.68.080, 11.68.090, 11.68.110, 11.76.080, 11.76.095, 11.86.041, 11.95.140,
11.98.070, 11.98.240, 11.96.070, 11.104.010, 11.104.110, 11.108.010,
11.108.020, 11.108.025, 11.108.050, 11.28.237, and 11.108.060; adding new
sections to chapter 11.40 RCW; adding new sections to chapter 11.42 RCW; adding
new sections to chapter 11.68 RCW; adding a new section to chapter 11.104 RCW;
adding a new chapter to Title 11 RCW; creating a new section; and repealing RCW
11.40.011, 11.40.012, 11.40.013, 11.40.014, 11.40.015, 11.42.160, 11.42.170,
11.42.180, 11.44.066, 11.52.010, 11.52.012, 11.52.014, 11.52.016, 11.52.020,
11.52.022, 11.52.024, 11.52.030, 11.52.040, 11.52.050, 11.68.010, 11.68.020,
11.68.030, and 11.68.040.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
11.02.005 and 1994 c 221 s 1 are each amended to read as follows:
When
used in this title, unless otherwise required from the context:
(1)
"Personal representative" includes executor, administrator, special
administrator, and guardian or limited guardian and special representative.
(2)
"Net estate" refers to the real and personal property of a decedent
exclusive of homestead rights, exempt property, the family allowance and
enforceable claims against, and debts of, the deceased or the estate.
(3)
"Representation" refers to a method of determining distribution in
which the takers are in unequal degrees of kinship with respect to the
intestate, and is accomplished as follows: After first determining who, of
those entitled to share in the estate, are in the nearest degree of kinship, the
estate is divided into equal shares, the number of shares being the sum of the
number of persons who survive the intestate who are in the nearest degree of
kinship and the number of persons in the same degree of kinship who died before
the intestate but who left issue surviving the intestate; each share of a
deceased person in the nearest degree shall be divided among those of the
deceased person's issue who survive the intestate and have no ancestor then
living who is in the line of relationship between them and the intestate, those
more remote in degree taking together the share which their ancestor would have
taken had he or she survived the intestate. Posthumous children are considered
as living at the death of their parent.
(4)
"Issue" includes all the lawful lineal descendants of the ancestor
and all lawfully adopted children.
(5)
"Degree of kinship" means the degree of kinship as computed according
to the rules of the civil law; that is, by counting upward from the intestate
to the nearest common ancestor and then downward to the relative, the degree of
kinship being the sum of these two counts.
(6)
"Heirs" denotes those persons, including the surviving spouse, who
are entitled under the statutes of intestate succession to the real and
personal property of a decedent on the decedent's death intestate.
(7)
"Real estate" includes, except as otherwise specifically provided
herein, all lands, tenements, and hereditaments, and all rights thereto, and
all interest therein possessed and claimed in fee simple, or for the life of a
third person.
(8)
"Will" means an instrument validly executed as required by RCW
11.12.020.
(9)
"Codicil" means a will that modifies or partially revokes an existing
earlier will. A codicil need not refer to or be attached to the earlier will.
(10)
"Guardian" or "limited guardian" means a personal
representative of the person or estate of an incompetent or disabled person as
defined in RCW 11.88.010 and the term may be used in lieu of "personal
representative" wherever required by context.
(11)
"Administrator" means a personal representative of the estate of a
decedent and the term may be used in lieu of "personal
representative" wherever required by context.
(12)
"Executor" means a personal representative of the estate of a
decedent appointed by will and the term may be used in lieu of "personal
representative" wherever required by context.
(13)
"Special administrator" means a personal representative of the estate
of a decedent appointed for limited purposes and the term may be used in lieu
of "personal representative" wherever required by context.
(14)
"Trustee" means an original, added, or successor trustee and includes
the state, or any agency thereof, when it is acting as the trustee of a trust
to which chapter 11.98 RCW applies.
(15)
"Nonprobate asset" means those rights and interests of a person
having beneficial ownership of an asset that pass on the person's death under a
written instrument or arrangement other than the person's will.
"Nonprobate asset" includes, but is not limited to, a right or
interest passing under a joint tenancy with right of survivorship, joint bank
account with right of survivorship, payable on death or trust bank account,
transfer on death security or security account, deed or conveyance
if possession has been postponed until the death of the person, trust of which
the person is grantor and that becomes effective or irrevocable only upon the
person's death, community property agreement, individual retirement account or
bond, or note or other contract the payment or performance of which is affected
by the death of the person. "Nonprobate asset" does not include: A
payable-on-death provision of a life insurance policy, annuity, or other
similar contract, or of an employee benefit plan; a right or interest passing
by descent and distribution under chapter 11.04 RCW; a right or interest if,
before death, the person has irrevocably transferred the right or interest, the
person has waived the power to transfer it or, in the case of contractual arrangement,
the person has waived the unilateral right to rescind or modify the
arrangement; or a right or interest held by the person solely in a fiduciary
capacity. For the definition of "nonprobate asset" relating to
revocation of a provision for a former spouse upon dissolution of marriage or
declaration of invalidity of marriage, RCW 11.07.010(5) applies.
(16)
"Internal Revenue Code" means the United States Internal Revenue Code
of 1986, as amended or renumbered on January 1, ((1995)) 1997.
Words
that import the singular number may also be applied to the plural of persons
and things.
Words
importing the masculine gender only may be extended to females also.
Sec.
2. RCW
11.07.010 and 1994 c 221 s 2 are each amended to read as follows:
(1)
This section applies to all nonprobate assets, wherever situated, held at the
time of entry by a superior court of this state of a decree of dissolution of
marriage or a declaration of invalidity.
(2)(a)
If a marriage is dissolved or invalidated, a provision made prior to that event
that relates to the payment or transfer at death of the decedent's interest in
a nonprobate asset in favor of or granting an interest or power to the
decedent's former spouse is revoked. A provision affected by this section must
be interpreted, and the nonprobate asset affected passes, as if the former
spouse failed to survive the decedent, having died at the time of entry of the
decree of dissolution or declaration of invalidity.
(b)
This subsection does not apply if and to the extent that:
(i)
The instrument governing disposition of the nonprobate asset expressly provides
otherwise;
(ii)
The decree of dissolution or declaration of invalidity requires that the
decedent maintain a nonprobate asset for the benefit of a former spouse or
children of the marriage, payable on the decedent's death either outright or in
trust, and other nonprobate assets of the decedent fulfilling such a
requirement for the benefit of the former spouse or children of the marriage do
not exist at the decedent's death; or
(iii)
If not for this subsection, the decedent could not have effected the revocation
by unilateral action because of the terms of the decree or declaration, or for
any other reason, immediately after the entry of the decree of dissolution or
declaration of invalidity.
(3)(a)
A payor or other third party in possession or control of a nonprobate asset at
the time of the decedent's death is not liable for making a payment or
transferring an interest in a nonprobate asset to a decedent's former spouse
whose interest in the nonprobate asset is revoked under this section, or for
taking another action in reliance on the validity of the instrument governing
disposition of the nonprobate asset, before the payor or other third party has
actual knowledge of the dissolution or other invalidation of marriage. A payor
or other third party is liable for a payment or transfer made or other action
taken after the payor or other third party has actual knowledge of a revocation
under this section.
(b)
This section does not require a payor or other third party to pay or transfer a
nonprobate asset to a beneficiary designated in a governing instrument affected
by the dissolution or other invalidation of marriage, or to another person
claiming an interest in the nonprobate asset, if the payor or third party has
actual knowledge of the existence of a dispute between the former spouse and
the beneficiaries or other persons concerning rights of ownership of the
nonprobate asset as a result of the application of this section among the
former spouse and the beneficiaries or among other persons, or if the payor or
third party is otherwise uncertain as to who is entitled to the nonprobate
asset under this section. In such a case, the payor or third party may,
without liability, notify in writing all beneficiaries or other persons
claiming an interest in the nonprobate asset of either the existence of the
dispute or its uncertainty as to who is entitled to payment or transfer of the
nonprobate asset. The payor or third party may also, without liability, refuse
to pay or transfer a nonprobate asset in such a circumstance to a beneficiary
or other person claiming an interest until the time that either:
(i)
All beneficiaries and other interested persons claiming an interest have
consented in writing to the payment or transfer; or
(ii)
The payment or transfer is authorized or directed by a court of proper
jurisdiction.
(c)
Notwithstanding subsections (1) and (2) of this section and (a) and (b) of this
subsection, a payor or other third party having actual knowledge of the
existence of a dispute between beneficiaries or other persons concerning rights
to a nonprobate asset as a result of the application of this section may
condition the payment or transfer of the nonprobate asset on execution, in a
form and with security acceptable to the payor or other third party, of a bond
in an amount that is double the fair market value of the nonprobate asset at
the time of the decedent's death or the amount of an adverse claim, whichever
is the lesser, or of a similar instrument to provide security to the payor or
other third party, indemnifying the payor or other third party for any
liability, loss, damage, costs, and expenses for and on account of payment or
transfer of the nonprobate asset.
(d)
As used in this subsection, "actual knowledge" means, for a payor or
other third party in possession or control of the nonprobate asset at or
following the decedent's death, written notice to the payor or other third
party, or to an officer of a payor or third party in the course of his or her
employment, received after the decedent's death and within a time that is
sufficient to afford the payor or third party a reasonable opportunity to act
upon the knowledge. The notice must identify the nonprobate asset with
reasonable specificity. The notice also must be sufficient to inform the payor
or other third party of the revocation of the provisions in favor of the
decedent's spouse by reason of the dissolution or invalidation of marriage, or
to inform the payor or third party of a dispute concerning rights to a
nonprobate asset as a result of the application of this section. Receipt of
the notice for a period of more than thirty days is presumed to be received
within a time that is sufficient to afford the payor or third party a
reasonable opportunity to act upon the knowledge, but receipt of the notice for
a period of less than five business days is presumed not to be a sufficient
time for these purposes. These presumptions may be rebutted only by clear and
convincing evidence to the contrary.
(4)(a)
A person who purchases a nonprobate asset from a former spouse or other person,
for value and without actual knowledge, or who receives from a former spouse or
other person payment or transfer of a nonprobate asset without actual knowledge
and in partial or full satisfaction of a legally enforceable obligation, is
neither obligated under this section to return the payment, property, or
benefit nor is liable under this section for the amount of the payment or the
value of the nonprobate asset. However, a former spouse or other person who,
with actual knowledge, not for value, or not in satisfaction of a legally
enforceable obligation, receives payment or transfer of a nonprobate asset to
which that person is not entitled under this section is obligated to return the
payment or nonprobate asset, or is personally liable for the amount of the
payment or value of the nonprobate asset, to the person who is entitled to it
under this section.
(b)
As used in this subsection, "actual knowledge" means, for a person
described in (a) of this subsection who purchases or receives a nonprobate
asset from a former spouse or other person, personal knowledge or possession of
documents relating to the revocation upon dissolution or invalidation of marriage
of provisions relating to the payment or transfer at the decedent's death of
the nonprobate asset, received within a time after the decedent's death and
before the purchase or receipt that is sufficient to afford the person
purchasing or receiving the nonprobate asset reasonable opportunity to act upon
the knowledge. Receipt of the personal knowledge or possession of the
documents for a period of more than thirty days is presumed to be received
within a time that is sufficient to afford the payor or third party a
reasonable opportunity to act upon the knowledge, but receipt of the notice for
a period of less than five business days is presumed not to be a sufficient
time for these purposes. These presumptions may be rebutted only by clear and
convincing evidence to the contrary.
(5)
As used in this section, "nonprobate asset" means those rights and
interests of a person having beneficial ownership of an asset that pass on the
person's death under only the following written instruments or arrangements other
than the decedent's will:
(a)
A payable-on-death provision of a life insurance policy, employee benefit plan,
annuity or similar contract, or individual retirement account;
(b)
A payable-on-death, trust, or joint with right of survivorship bank account;
(c)
A trust of which the person is a grantor and that becomes effective or
irrevocable only upon the person's death; or
(d)
Transfer on death beneficiary designations of a transfer on death or pay on
death security, if such designations are authorized under Washington law.
However,
for the general definition of "nonprobate asset" in this title, RCW
11.02.005 applies.
(6)
This section is remedial in nature and applies as of July 25, 1993, to decrees
of dissolution and declarations of invalidity entered after July 24, 1993, and
this section applies as of January 1, 1995, to decrees of dissolution and
declarations of invalidity entered before July 25, 1993.
Sec.
3. RCW
11.18.200 and 1994 c 221 s 19 are each amended to read as follows:
(1)
Unless expressly exempted by statute, a beneficiary of a nonprobate asset that
was subject to satisfaction of the decedent's general liabilities immediately
before the decedent's death takes the asset subject to liabilities, claims,
estate taxes, and the fair share of expenses of administration reasonably
incurred by the personal representative in the transfer of or administration
upon the asset. The beneficiary of such an asset is liable to account to the
personal representative to the extent necessary to satisfy liabilities, claims,
the asset's fair share of expenses of administration, and the asset's share of
estate taxes under chapter 83.110 RCW. Before making demand that a beneficiary
of a nonprobate asset account to the personal representative, the personal
representative shall give notice to the beneficiary, in the manner provided in
chapter 11.96 RCW, that the beneficiary is liable to account under this
section.
(2)
The following rules govern in applying subsection (1) of this section:
(a)
A beneficiary of property passing at death under a community property agreement
takes the property subject to the decedent's liabilities, claims, estate taxes,
and administration expenses as described in subsection (1) of this section.
However, assets existing as community or separate property immediately before
the decedent's death under the community property agreement are subject to the
decedent's liabilities and claims to the same extent that they would have been
had they been assets of the probate estate.
(b)
A beneficiary of property held in joint tenancy form with right of
survivorship, including without limitation United States savings bonds or
similar obligations, takes the property subject to the decedent's liabilities,
claims, estate taxes, and administration expenses as described in subsection
(1) of this section to the extent of the decedent's beneficial ownership
interest in the property immediately before death.
(c)
A beneficiary of payable-on-death or trust bank accounts, bonds, securities, or
similar obligations, including without limitation United States bonds or
similar obligations, takes the property subject to the decedent's liabilities,
claims, estate taxes, and administration expenses as described in subsection
(1) of this section, to the extent of the decedent's beneficial ownership
interest in the property immediately before death.
(d)
A beneficiary of deeds or conveyances made by the decedent if possession has
been postponed until the death of the decedent takes the property subject to
the decedent's liabilities, claims, estate taxes, and administration expenses
as described in subsection (1) of this section, to the extent of the decedent's
beneficial ownership interest in the property immediately before death.
(e)
A trust for the decedent's use of which the decedent is the grantor is subject
to the decedent's liabilities, claims, estate taxes, and administration
expenses as described in subsection (1) of this section, to the same extent as
the trust was subject to claims of the decedent's creditors immediately before
death under RCW 19.36.020.
(f)
A trust not for the use of the grantor but of which the decedent is the grantor
and that becomes effective or irrevocable only upon the decedent's death is
subject to the decedent's claims, liabilities, estate taxes, and expenses of
administration as described in subsection (1) of this section.
(g)
Anything in this section to the contrary notwithstanding, nonprobate assets
that existed as community property immediately before the decedent's death are
subject to the decedent's liabilities and claims to the same extent that they
would have been had they been assets of the probate estate.
(h)
The liability of a beneficiary of life insurance is governed by chapter 48.18
RCW.
(i)
The liability of a beneficiary of pension or retirement employee benefits is
governed by chapter 6.15 RCW.
(j)
An inference may not be drawn from (a) through (i) of this subsection that a
beneficiary of nonprobate assets other than those assets specifically described
in (a) through (i) of this subsection does or does not take the assets subject
to claims, liabilities, estate taxes, and administration expenses as described
in subsection (1) of this section.
(3)
Nothing in this section derogates from the rights of a person interested in the
estate to recover tax under chapter 83.110 RCW or from the liability of any
beneficiary for estate tax under chapter 83.110 RCW.
(4)
Nonprobate assets that may be responsible for the satisfaction of the
decedent's general liabilities and claims abate together with the probate
assets of the estate in accord with chapter 11.10 RCW.
Sec.
4. RCW
11.28.240 and 1985 c 30 s 5 are each amended to read as follows:
(1)
At any time after the issuance of letters testamentary or of administration or
certificate of qualification upon the estate of any decedent, any person interested
in the estate as an heir, devisee, distributee, legatee or creditor whose claim
has been duly served and filed, or the lawyer for the heir, devisee,
distributee, legatee, or creditor may serve upon the personal representative or
upon the lawyer for the personal representative, and file with the clerk of the
court wherein the administration of the estate is pending, a written request
stating that the person desires special notice of any or all of the following
named matters, steps or proceedings in the administration of the estate, to
wit:
(((1)))
(a) Filing of petitions for sales, leases, exchanges or mortgages of any
property of the estate.
(((2)))
(b) Petitions for any order of solvency or for nonintervention powers.
(((3)))
(c) Filing of accounts.
(((4)))
(d) Filing of petitions for distribution.
(((5)))
(e) Petitions by the personal representative for family allowances and
homesteads.
(((6)))
(f) The filing of a declaration of completion.
(((7)))
(g) The filing of the inventory.
(((8)))
(h) Notice of presentation of personal representative's claim against
the estate.
(((9)))
(i) Petition to continue a going business.
(((10)))
(j) Petition to borrow upon the general credit of the estate.
(((11)))
(k) Petition for judicial proceedings under chapter 11.96 RCW.
(((12)))
(l) Petition to reopen an estate.
(((13)))
(m) Intent to distribute estate assets, other than distributions in
satisfaction of specific bequests or legacies of specific dollar amounts.
(((14)))
(n) Intent to pay attorney's or personal representative's fees.
The
requests shall state the post office address of the heir, devisee, distributee,
legatee or creditor, or his or her lawyer, and thereafter a brief notice of the
filing of any of the petitions, accounts, declaration, inventory or claim,
except petitions for sale of perishable property, or other tangible personal
property which will incur expense or loss by keeping, shall be addressed to the
heir, devisee, distributee, legatee or creditor, or his or her lawyer, at the
post office address stated in the request, and deposited in the United States
post office, with prepaid postage, at least ten days before the hearing of the
petition, account or claim or of the proposed distribution or payment of fees;
or personal service of the notices may be made on the heir, devisee,
distributee, legatee, creditor, or lawyer, not less than five days before the
hearing, and the personal service shall have the same effect as deposit in the
post office, and proof of mailing or of personal service must be filed with the
clerk before the hearing of the petition, account or claim or of the proposed
distribution or payment of fees. If the notice has been regularly given, any
distribution or payment of fees and any order or judgment, made in accord
therewith is final and conclusive.
(2)
Notwithstanding subsection (1) of this section, a request for special notice
may not be made by a person, and any request for special notice previously made
by a person becomes null and void, when:
(a)
That person qualifies to request special notice solely by reason of being a specific
legatee, all of the property that person is entitled to receive from the
decedent's estate has been distributed to that person, and that person's
bequest is not subject to any subsequent abatement for the payment of the
decedent's debts, expenses, or taxes;
(b)
That person qualifies to request special notice solely by reason of being an
heir of the decedent, none of the decedent's property is subject to the laws of
descent and distribution, the decedent's will has been probated, and the time
for contesting the probate of that will has expired; or
(c)
That person qualifies to request special notice solely by reason of being a
creditor of the decedent and that person has received all of the property that
the person is entitled to receive from the decedent's estate.
Sec.
5. RCW
11.28.270 and 1965 c 145 s 11.28.270 are each amended to read as follows:
If
((there be)) more than one personal representative of an estate((,
and)) is serving when the letters to ((part)) any of
them ((be)) are revoked or surrendered((,)) or ((a part))
when any part of them dies or in any way becomes
disqualified, those who remain shall perform all the duties required by law unless
the decedent provided otherwise in a duly probated will or unless the court
orders otherwise.
Sec.
6. RCW
11.28.280 and 1974 ex.s. c 117 s 26 are each amended to read as follows:
Except
as otherwise provided in RCW 11.28.270, if ((the)) a personal
representative of an estate dies((,)) or resigns((,)) or
the letters are revoked before the settlement of the estate, letters testamentary
or letters of administration of the estate remaining unadministered shall
be granted to those to whom ((administration)) the letters would
have been granted if the original letters had not been obtained, or the person
obtaining them had renounced administration, and the ((administrator de
bonis non)) successor personal representative shall perform like
duties and incur like liabilities as the ((former personal representative,
and shall serve as administrator with will annexed de bonis non in the event a
will has been admitted to probate. Said administrator de bonis non may, upon
satisfying the requirements and complying with the procedures provided in
chapter 11.68 RCW, administer the estate of the decedent without the
intervention of court)) preceding personal representative, unless the
decedent provided otherwise in a duly probated will or unless the court orders
otherwise. A succeeding personal representative may petition for
nonintervention powers under chapter 11.68 RCW.
Sec.
7. RCW
11.40.010 and 1995 1st sp.s. c 18 s 58 are each amended to read as follows:
((Every
personal representative shall, after appointment and qualification, give a
notice to the creditors of the deceased, stating such appointment and
qualification as personal representative and requiring all persons having
claims against the deceased to serve the same on the personal representative or
the estate's attorney of record, and file an executed copy thereof with the
clerk of the court, within four months after the date of the first publication
of such notice described in this section or within four months after the date
of the filing of the copy of such notice with the clerk of the court, whichever
is the later, or within the time otherwise provided in RCW 11.40.013. The
four-month time period after the later of the date of the first publication of
the notice to creditors or the date of the filing of such notice with the clerk
of the court is referred to in this chapter as the "four-month time
limitation." Such notice shall be given as follows:
(1)
The personal representative shall give actual notice, as provided in RCW
11.40.013, to such creditors who become known to the personal representative
within such four-month time limitation;
(2)
The personal representative shall cause such notice to be published once in
each week for three successive weeks in the county in which the estate is being
administered;
(3)
The personal representative shall file a copy of such notice with the clerk of
the court; and
(4)
The personal representative shall mail a copy of the notice, including the
decedent's social security number, to the state of Washington, department of
social and health services, office of financial recovery.
Except
as otherwise provided in RCW 11.40.011 or 11.40.013, any claim not filed within
the four-month time limitation shall be forever barred, if not already barred
by any otherwise applicable statute of limitations. This bar is effective as
to claims against both the decedent's probate assets and nonprobate assets as
described in RCW 11.18.200. Proof by affidavit of the giving and publication
of such notice shall be filed with the court by the personal representative.
Acts
of a notice agent in complying with chapter 221, Laws of 1994 may be adopted
and ratified by the personal representative as if done by the personal
representative in complying with this chapter, except that if at the time of
the appointment and qualification of the personal representative a notice agent
had commenced nonprobate notice to creditors under chapter 11.42 RCW, the
personal representative shall give published notice as provided in RCW
11.42.180.)) A person having a claim against the
decedent may not maintain an action on the claim unless a personal
representative has been appointed and the claimant has presented the claim as
set forth in this chapter. However, this chapter does not affect the notice
under RCW 82.32.240 or the ability to maintain an action against a notice agent
under chapter 11.42 RCW.
Sec.
8. RCW
11.40.020 and 1974 ex.s. c 117 s 34 are each amended to read as follows:
((Every
claim shall be signed by the claimant, or his attorney, or any person who is
authorized to sign claims on his, her, or its behalf, and shall contain the
following information:
(1)
The name and address of the claimant;
(2)
The name, business address (if different from that of the claimant), and nature
of authority of any person signing the claim on behalf of the claimant;
(3)
A written statement of the facts or circumstances constituting the basis upon
which the claim is submitted;
(4)
The amount of the claim;
(5)
If the claim is secured, unliquidated or contingent, or not yet due, the nature
of the security, the nature of the uncertainty, and due date of the claim:
PROVIDED HOWEVER, That failure to describe correctly the security, nature of
any uncertainty, or the due date of a claim not yet due, if such failure is not
substantially misleading, does not invalidate the presentation made.
Claims
need not be supported by affidavit.)) A personal
representative may give notice to the creditors of the decedent, as directed in
RCW 11.40.030, announcing the personal representative's appointment and
requiring that persons having claims against the decedent present their claims
within the time specified in section 11 of this act or be forever barred as to
claims against the decedent's probate and nonprobate assets. If notice is
given:
(1)
The personal representative shall first file the original of the notice with
the court;
(2)
The personal representative shall then cause the notice to be published once
each week for three successive weeks in a legal newspaper in the county in
which the estate is being administered;
(3)
The personal representative may, at any time during the probate proceeding,
give actual notice to creditors who become known to the personal representative
by serving the notice on the creditor or mailing the notice to the creditor at
the creditor's last known address, by regular first class mail, postage
prepaid; and
(4)
The personal representative shall also mail a copy of the notice, including the
decedent's social security number, to the state of Washington department of
social and health services office of financial recovery.
The
personal representative shall file with the court proof by affidavit of the
giving and publication of the notice.
Sec.
9. RCW
11.40.030 and 1989 c 333 s 7 are each amended to read as follows:
(((1)
Unless the personal representative shall, within two months after the
expiration of the four-month time limitation, or within two months after receipt
of an otherwise timely claim filed after expiration of the four-month time
limitation, whichever is later, have obtained an order extending the time for
his allowance or rejection of claims timely and properly served and filed, all
claims not exceeding one thousand dollars presented within the time and in the
manner provided in RCW 11.40.010, 11.40.013, or 11.40.020 as now or hereafter
amended, shall be deemed allowed and may not thereafter be rejected, unless the
personal representative shall, within two months after the expiration of the
four-month time limitation, or as to an otherwise timely claim filed after
expiration of the four-month time limitation, within two months after receipt
of such claim, or within any extended time, notify the claimant of its
rejection, in whole or in part.
(2)
When a claim exceeding one thousand dollars is presented within the time and in
the manner provided in RCW 11.40.010 and 11.40.020 as now or hereafter amended,
it shall be the duty of the personal representative to indorse thereon his
allowance or rejection. A claimant after a claim has been on file for at least
thirty days may notify the personal representative that he will petition the
court to have the claim allowed. If the personal representative fails to file
an allowance or rejection of such claim twenty days after the receipt of such
notice, the claimant may note the matter up for hearing and the court shall
hear the matter and determine whether the claim should be allowed or rejected,
in whole or in part. If at the hearing the claim is substantially allowed the
court may allow petitioner reasonable attorney's fees of not less than one
hundred dollars chargeable against the estate.
(3)
If the personal representative shall reject the claim, in whole or in part, he
shall notify the claimant of said rejection and file in the office of the
clerk, an affidavit showing such notification and the date thereof. Said
notification shall be by personal service or certified mail addressed to the
claimant at his address as stated in the claim; if a person other than the
claimant shall have signed said claim for or on behalf of the claimant, and
said person's business address as stated in said claim is different from that
of the claimant, notification of rejection shall also be made by personal
service or certified mail upon said person; the date of the postmark shall be
the date of notification. The notification of rejection shall advise the
claimant, and the person making claim on his, her, or its behalf, if any, that the
claimant must bring suit in the proper court against the personal
representative within thirty days after notification of rejection or before
expiration of the time for serving and filing claims against the estate,
whichever period is longer, and that otherwise the claim will be forever
barred.
(4) The personal representative may, either before or after
rejection of any claim compromise said claim, whether due or not, absolute or
contingent, liquidated or unliquidated, if it appears to the personal representative
that such compromise is in the best interests of the estate.)) Notice
under RCW 11.40.020 must contain the following elements in substantially the
following form:
CAPTION ) No.
OF CASE ) PROBATE NOTICE TO
) CREDITORS
....................... ) RCW
11.40.030
The
personal representative named below has been appointed as personal
representative of this estate. Any person having a claim against the decedent
must, before the time the claim would be barred by any otherwise applicable
statute of limitations, present the claim in the manner as provided in RCW
11.40.070 by serving on or mailing to the personal representative or the
personal representative's attorney at the address stated below a copy of the
claim and filing the original of the claim with the court. The claim must be
presented within the later of: (1) Thirty days after the personal
representative served or mailed the notice to the creditor as provided under
RCW 11.40.020(3); or (2) four months after the date of first publication of the
notice. If the claim is not presented within this time frame, the claim is
forever barred, except as otherwise provided in section 11 of this act and RCW
11.40.060. This bar is effective as to claims against both the decedent's
probate and nonprobate assets.
Date
of First
Publication:
Personal
Representative:
Attorney
for the Personal Representative:
Address
for Mailing or Service:
Sec.
10. RCW
11.40.040 and 1994 c 221 s 28 are each amended to read as follows:
((Every
claim which has been allowed by the personal representative shall be ranked
among the acknowledged debts of the estate to be paid expeditiously in the
course of administration.)) (1) For purposes of section 11 of this act,
a "reasonably ascertainable" creditor of the decedent is one that the
personal representative would discover upon exercise of reasonable diligence.
The personal representative is deemed to have exercised reasonable diligence
upon conducting a reasonable review of the decedent's correspondence, including
correspondence received after the date of death, and financial records,
including personal financial statements, loan documents, checkbooks, bank
statements, and income tax returns, that are in the possession of or reasonably
available to the personal representative.
(2)
If the personal representative conducts the review, the personal representative
is presumed to have exercised reasonable diligence to ascertain creditors of
the decedent and any creditor not ascertained in the review is presumed not
reasonably ascertainable within the meaning of section 11 of this act. These
presumptions may be rebutted only by clear, cogent, and convincing evidence.
(3)
The personal representative may evidence the review and resulting presumption
by filing with the court an affidavit regarding the facts referred to in this
section. The personal representative may petition the court for an order
declaring that the personal representative has made a review and that any
creditors not known to the personal representative are not reasonably
ascertainable. The petition must be filed under RCW 11.96.070 and the notice
specified under RCW 11.96.100 must also be given by publication.
NEW
SECTION. Sec. 11. A
new section is added to chapter 11.40 RCW to read as follows:
(1)
Whether or not notice is provided under RCW 11.40.020, a person having a claim
against the decedent is forever barred from making a claim or commencing an
action against the decedent, if the claim or action is not already barred by an
otherwise applicable statute of limitations, unless the creditor presents the
claim in the manner provided in RCW 11.40.070 within the following time
limitations:
(a)
If the personal representative provided notice under RCW 11.40.020 (1) and (2)
and the creditor was given actual notice as provided in RCW 11.40.020(3), the
creditor must present the claim within the later of: (i) Thirty days after the
personal representative's service or mailing of notice to the creditor; and
(ii) four months after the date of first publication of the notice;
(b)
If the personal representative provided notice under RCW 11.40.020 (1) and (2)
and the creditor was not given actual notice as provided in RCW 11.40.020(3):
(i)
If the creditor was not reasonably ascertainable, as defined in RCW 11.40.040,
the creditor must present the claim within four months after the date of first
publication of notice;
(ii)
If the creditor was reasonably ascertainable, as defined in RCW 11.40.040, the
creditor must present the claim within twenty-four months after the decedent's
date of death; and
(c)
If notice was not provided under this chapter or chapter 11.42 RCW, the
creditor must present the claim within twenty-four months after the decedent's
date of death.
(2)
An otherwise applicable statute of limitations applies without regard to the
tolling provisions of RCW 4.16.190.
(3)
This bar is effective as to claims against both the decedent's probate and
nonprobate assets.
Sec.
12. RCW
11.40.060 and 1974 ex.s. c 117 s 37 are each amended to read as follows:
((When
a claim is rejected by the personal representative, the holder must bring suit
in the proper court against the personal representative within thirty days
after notification of the rejection or before expiration of the time for
serving and filing claims against the estate, whichever period is longer,
otherwise the claim shall be forever barred.)) The time limitations for
presenting claims under this chapter do not accrue to the benefit of any
liability or casualty insurer. Claims against the decedent or the decedent's
marital community that can be fully satisfied by applicable insurance coverage or
proceeds need not be presented within the time limitation of section 11 of this
act, but the amount of recovery cannot exceed the amount of the insurance. The
claims may at any time be presented as provided in RCW 11.40.070, subject to
the otherwise relevant statutes of limitations, and do not constitute a cloud,
lien, or encumbrance upon the title to the decedent's probate or nonprobate
assets nor delay or prevent the conclusion of probate proceedings or the
transfer or distribution of assets of the estate. This section does not serve
to extend any otherwise relevant statutes of limitations.
Sec.
13. RCW
11.40.070 and 1965 c 145 s 11.40.070 are each amended to read as follows:
((No
claim shall be allowed by the personal representative or court which is barred
by the statute of limitations.)) (1) The claimant, the claimant's
attorney, or the claimant's agent shall sign the claim and include in the claim
the following information:
(a)
The name and address of the claimant;
(b)
The name, address, if different from that of the claimant, and nature of
authority of an agent signing the claim on behalf of the claimant;
(c)
A statement of the facts or circumstances constituting the basis of the claim;
(d)
The amount of the claim; and
(e)
If the claim is secured, unliquidated, contingent, or not yet due, the nature
of the security, the nature of the uncertainty, or the date when it will become
due.
Failure
to describe correctly the information in (c), (d), or (e) of this subsection,
if the failure is not substantially misleading, does not invalidate the claim.
(2)
A claim does not need to be supported by affidavit.
(3)
A claim must be presented within the time limits set forth in section 11 of
this act by: (a) Serving on or mailing to, by regular first class mail, the
personal representative or the personal representative's attorney a copy of the
signed claim; and (b) filing the original of the signed claim with the court.
A claim is deemed presented upon the later of the date of postmark or service
on the personal representative, or the personal representative's attorney, and
filing with the court.
(4)
Notwithstanding any other provision of this chapter, if a claimant makes a
written demand for payment within the time limits set forth in section 11 of
this act, the personal representative may waive formal defects and elect to
treat the demand as a claim properly filed under this chapter if: (a) The
claim was due; (b) the amount paid is the amount of indebtedness over and above
all payments and offsets; (c) the estate is solvent; and (d) the payment is
made in good faith. Nothing in this chapter limits application of the
doctrines of waiver, estoppel, or detrimental claims or any other equitable
principle.
Sec.
14. RCW
11.40.080 and 1994 c 221 s 29 are each amended to read as follows:
((No
holder of any claim against a decedent shall maintain an action thereon, unless
the claim shall have been first presented as provided in this chapter. Nothing
in this chapter affects RCW 82.32.240.)) (1) The personal representative
shall allow or reject all claims presented in the manner provided in RCW
11.40.070. The personal representative may allow or reject a claim in whole or
in part.
(2)
If the personal representative has not allowed or rejected a claim within the
later of four months from the date of first publication of the notice to
creditors or thirty days from presentation of the claim, the claimant may serve
written notice on the personal representative that the claimant will petition
the court to have the claim allowed. If the personal representative fails to
notify the claimant of the allowance or rejection of the claim within twenty
days after the personal representative's receipt of the claimant's notice, the
claimant may petition the court for a hearing to determine whether the claim
should be allowed or rejected, in whole or in part. If the court substantially
allows the claim, the court may allow the petitioner reasonable attorneys' fees
chargeable against the estate.
Sec.
15. RCW
11.40.090 and 1965 c 145 s 11.40.090 are each amended to read as follows:
((The
time during which there shall be a vacancy in the administration shall not be
included in any limitations herein prescribed.)) (1) If the personal
representative allows a claim, the personal representative shall notify the
claimant of the allowance by personal service or regular first class mail to
the address stated on the claim.
(2)
A claim that on its face does not exceed one thousand dollars presented in the
manner provided in RCW 11.40.070 must be deemed allowed and may not thereafter
be rejected unless the personal representative has notified the claimant of rejection
of the claim within the later of six months from the date of first publication
of the notice to creditors and two months from the personal representative's
receipt of the claim. The personal representative may petition for an order
extending the period for automatic allowance of the claims.
(3)
Allowed claims must be ranked among the acknowledged debts of the estate to be
paid expeditiously in the course of administration.
(4)
A claim may not be allowed if it is barred by a statute of limitations.
Sec.
16. RCW
11.40.100 and 1974 ex.s. c 117 s 47 are each amended to read as follows:
((If
any action be pending against the testator or intestate at the time of his
death, the plaintiff shall within four months after first publication of notice
to creditors, or the filing of a copy of such notice, whichever is later, serve
on the personal representative a motion to have such personal representative,
as such, substituted as defendant in such action, and, upon the hearing of such
motion, such personal representative shall be so substituted, unless, at or
prior to such hearing, the claim of plaintiff, together with costs, be allowed
by the personal representative and court. After the substitution of such
personal representative, the court shall proceed to hear and determine the
action as in other civil cases.)) (1) If the personal representative
rejects a claim, in whole or in part, the claimant must bring suit against the
personal representative within thirty days after notification of rejection or
the claim is forever barred. The personal representative shall notify the
claimant of the rejection and file an affidavit with the court showing the
notification and the date of the notification. The personal representative
shall notify the claimant of the rejection by personal service or certified
mail addressed to the claimant or the claimant's agent, if applicable, at the
address stated in the claim. The date of service or of the postmark is the
date of notification. The notification must advise the claimant that the
claimant must bring suit in the proper court against the personal
representative within thirty days after notification of rejection or the claim
will be forever barred.
(2)
The personal representative may, before or after rejection of any claim,
compromise the claim, whether due or not, absolute or contingent, liquidated,
or unliquidated, if it appears to the personal representative that the
compromise is in the best interests of the estate.
Sec.
17. RCW
11.40.110 and 1974 ex.s. c 117 s 38 are each amended to read as follows:
((Whenever
any claim shall have been filed and presented to a personal representative, and
a part thereof shall be allowed, the amount of such allowance shall be stated
in the indorsement. If the creditor shall refuse to accept the amount so
allowed in satisfaction of his claim, he shall recover no costs in any action
he may bring against the personal representative unless he shall recover a
greater amount than that offered to be allowed, exclusive of interest and
costs.)) If an action is pending against the decedent at the time of the
decedent's death, the plaintiff shall, within four months after appointment of
the personal representative, serve on the personal representative a petition to
have the personal representative substituted as defendant in the action. Upon
hearing on the petition, the personal representative shall be substituted,
unless, at or before the hearing, the claim of the plaintiff, together with
costs, is allowed.
Sec.
18. RCW
11.40.120 and 1965 c 145 s 11.40.120 are each amended to read as follows:
The
effect of any judgment rendered against ((any)) a personal
representative shall be only to establish the amount of the judgment as an
allowed claim.
Sec.
19. RCW
11.40.130 and 1965 c 145 s 11.40.130 are each amended to read as follows:
((When
any judgment has been rendered against the testator or intestate in his
lifetime, no execution shall issue thereon after his death, but it shall be
presented to the personal representative, as any other claim, but need not be
supported by the affidavit of the claimant, and if justly due and unsatisfied,
shall be paid in due course of administration: PROVIDED, HOWEVER, That if it
be a lien on any property of the deceased, the same may be sold for the
satisfaction thereof, and the officer making the sale shall account to the
personal representative for any surplus in his hands.)) If a judgment
was entered against the decedent during the decedent's lifetime, an execution
may not issue on the judgment after the death of the decedent. The judgment
must be presented in the manner provided in RCW 11.40.070, but if the judgment
is a lien on any property of the decedent, the property may be sold for the
satisfaction of the judgment and the officer making the sale shall account to
the personal representative for any surplus.
NEW
SECTION. Sec. 20. A
new section is added to chapter 11.40 RCW to read as follows:
If
a creditor's claim is secured by any property of the decedent, this chapter
does not affect the right of a creditor to realize on the creditor's security,
whether or not the creditor presented the claim in the manner provided in RCW
11.40.070.
Sec.
21. RCW
11.40.140 and 1965 c 145 s 11.40.140 are each amended to read as follows:
((If the personal representative is himself a creditor of the
testator or intestate, his claim, duly authenticated by affidavit, shall be
filed and presented for allowance or rejection to the judge of the court, and
its allowance by the judge shall be sufficient evidence of its correctness.
This section shall apply to nonintervention and all other wills.)) If
the personal representative has a claim against the decedent, the personal
representative must present the claim in the manner provided in RCW 11.40.070
and petition the court for allowance or rejection. The petition must be filed
under RCW 11.96.070. This section applies whether or not the personal
representative is acting under nonintervention powers.
Sec.
22. RCW
11.40.150 and 1965 c 145 s 11.40.150 are each amended to read as follows:
((In
case of resignation, death or removal for any cause of any personal representative,
and the appointment of another or others, after notice has been given by
publication as required by RCW 11.40.010, by such personal representative first
appointed, to persons to file their claims against the decedent, it shall be
the duty of the successor or personal representative to cause notice of such
resignation, death or removal and such new appointment to be published two
successive weeks in a legal newspaper published in the county in which the
estate is being administered, but the time between the resignation, death or
removal and such publication shall be added to the time within which claims
shall be filed as fixed by the published notice to creditors unless such time
shall have expired before such resignation or removal or death: PROVIDED,
HOWEVER, That no such notice shall be required if the period for filing claims
was fully expired during the time that the former personal representative was
qualified.)) (1) If a personal representative has given notice under RCW
11.40.020 and then resigns, dies, or is removed, the successor personal
representative shall:
(a)
Publish notice of the vacancy and succession for two successive weeks in the
legal newspaper in which notice was published under RCW 11.40.020 if the
vacancy occurred within twenty-four months after the decedent's date of death;
and
(b)
Provide actual notice of the vacancy and succession to a creditor if: (i) The
creditor filed a claim and the claim had not been accepted or rejected by the
prior personal representative; or (ii) the creditor's claim was rejected and
the vacancy occurred within thirty days after rejection of the claim.
(2)
The time between the resignation, death, or removal and first publication of
the vacancy and succession or, in the case of actual notice, the mailing of the
notice of vacancy and succession must be added to the time within which a claim
must be presented or a suit on a rejected claim must be filed. This section
does not extend the twenty-four month self-executing bar under section 11 of
this act.
NEW
SECTION. Sec. 23. A
new section is added to chapter 11.40 RCW to read as follows:
If
a notice agent had commenced nonprobate notice to creditors under chapter 11.42
RCW, the appointment of the personal representative does not affect the filing
and publication of notice to creditors and does not affect actual notice to
creditors given by the notice agent. The personal representative is presumed
to have adopted or ratified all acts of the notice agent unless, within thirty
days of appointment, the personal representative provides notice of rejection
or nullification to the affected claimant or claimants by personal service or
certified mail addressed to the claimant or claimant's agent, if applicable, at
the address stated on the claim. The personal representative shall also
provide notice under RCW 11.42.150.
Sec.
24. RCW
11.42.010 and 1994 c 221 s 31 are each amended to read as follows:
(1)
Subject to the conditions stated in this ((section)) chapter, and
if no personal representative has been appointed ((and qualified in the
decedent's estate)) in ((Washington, the following members of a group,
defined as the "qualified group," are qualified to give
"nonprobate notice to creditors" of the decedent:
(a)
Decedent's surviving spouse;
(b)
The person appointed in an agreement made under chapter 11.96 RCW to give
nonprobate notice to creditors of the decedent;
(c)
The trustee, except a testamentary trustee under the will of the decedent not
probated in another state, having authority over any of the property of the
decedent; and
(d)
A person who has received any property of the decedent by reason of the
decedent's death.
(2)
The "included property" means the property of the decedent that was
subject to satisfaction of the decedent's general liabilities immediately
before the decedent's death and that either:
(a)
Constitutes a nonprobate asset; or
(b)
Has been received, or is entitled to be received, either under chapter 11.62
RCW or by the personal representative of the decedent's probate estate
administered outside the state of Washington, or both.
(3)
The qualified person shall give the nonprobate notice to creditors. The
"qualified person" must be:
(a)
The person in the qualified group who has received, or is entitled to receive,
by reason of the decedent's death, all, or substantially all, of the included
property; or
(b)
If there is no person in (a) of this subsection, then the person who has been
appointed by those persons, including any successors of those persons, in the
qualified group who have received, or are entitled to receive, by reason of the
decedent's death, all, or substantially all, of the included property.
(4)
The requirement in subsection (3) of this section of the receipt of all, or
substantially all, of the included property is satisfied if:
(a)
The person described in subsection (3)(a) of this section at the time of the
filing of the declaration and oath referred to in subsection (5) of this
section in reasonable good faith believed that the person had received, or was
entitled to receive, by reason of the decedent's death, all, or substantially
all, of the included property; or
(b)
The persons described in subsection (3)(b) of this section at the time of their
entry into the agreement under chapter 11.96 RCW in which they appoint the
person to give the nonprobate notice to creditors in reasonable good faith
believed that they had received, or were entitled to receive, by reason of the
decedent's death, all, or substantially all, of the included property.
(5)
The "notice agent" means the qualified person who:
(a)
Files a declaration and oath with the clerk of the superior court in a county
in which probate may be commenced regarding the decedent as provided in RCW
11.96.050(2);
(b)
Pays a filing fee to the clerk equal in amount to the filing fee charged by the
clerk for the probate of estates; and
(c)
Receives from the clerk a cause number.
The
county in which the notice agent files the declaration is the "notice
county." The declaration and oath must be made in affidavit form or under
penalty of perjury under the laws of the state in the form provided in RCW
9A.72.085 and must state that the person making the declaration believes in
reasonable good faith that the person is qualified under this chapter to act as
the notice agent and that the person faithfully will execute the duties of the
notice agent as provided in this chapter.
(6)
The following persons may not act as notice agent:
(a)
Corporations, trust companies, and national banks, except:
(i)
Professional service corporations that are regularly organized under the laws
of this state whose shareholder or shareholders are exclusively attorneys; and
(ii)
Other corporations, trust companies, and national banks that are authorized to
do trust business in this state;
(b)
Minors;
(c)
Persons of unsound mind; or
(d)
Persons who have been convicted of a felony or of a misdemeanor involving moral
turpitude.
(7)
A person who has given notice under this chapter and who thereafter becomes of
unsound mind or is convicted of a crime or misdemeanor involving moral
turpitude is no longer qualified to act as notice agent under this chapter.
The disqualification does not bar another person, otherwise qualified, from
acting as notice agent under this chapter.
(8)
A nonresident may act as notice agent if the nonresident appoints an agent who
is a resident of the notice county or who is attorney of record for the notice
agent upon whom service of all papers may be made. The appointment must be
made in writing and filed by the clerk of the notice county with the other
papers relating to the notice given under this chapter.
(9)
The powers and authority of a notice agent cease, and the office of notice
agent becomes vacant, upon the appointment and qualification of a personal
representative for the estate of the decedent. Except as provided in RCW
11.42.180, the cessation of the powers and authority does not affect a published
notice under this chapter if the publication commenced before the cessation and
does not affect actual notice to creditors given by the notice agent before the
cessation.)) this state, a beneficiary or trustee who
has received or is entitled to receive by reason of the decedent's death
substantially all of the decedent's probate and nonprobate assets, is qualified
to give nonprobate notice to creditors under this chapter.
If
no one beneficiary or trustee has received or is entitled to receive substantially
all of the assets, then those persons, who in the aggregate have received or
are entitled to receive substantially all of the assets, may, under an
agreement under RCW 11.96.170, appoint a person who is then qualified to give
nonprobate notice to creditors under this chapter.
(2)
A person or group of persons is deemed to have received substantially all of
the decedent's probate and nonprobate assets if the person or the group, at the
time of the filing of the declaration and oath referred to in subsection (3) of
this section, in reasonable good faith believed that the person or the group
had received, or was entitled to receive by reason of the decedent's death,
substantially all of the decedent's probate and nonprobate assets.
(3)(a)
The "notice agent" means the qualified person who:
(i)
Pays a filing fee to the clerk of the superior court in a county in which
probate may be commenced regarding the decedent, the "notice county",
and receives a cause number; and
(ii)
Files a declaration and oath with the clerk.
(b)
The declaration and oath must be made in affidavit form or under penalty of
perjury and must state that the person making the declaration believes in
reasonable good faith that the person is qualified under this chapter to act as
the notice agent and that the person will faithfully execute the duties of the
notice agent as provided in this chapter.
(4)
The following persons are not qualified to act as notice agent:
(a)
Corporations, trust companies, and national banks, except: (i) Such entities
as are authorized to do trust business in this state; and (ii) professional
service corporations that are regularly organized under the laws of this state
whose shareholder or shareholders are exclusively attorneys;
(b)
Minors;
(c)
Persons of unsound mind;
(d)
Persons who have been convicted of a felony or of a misdemeanor involving moral
turpitude; and
(e)
Persons who have given notice under this chapter and who thereafter become of
unsound mind or are convicted of a felony or misdemeanor involving moral
turpitude. This disqualification does not bar another person, otherwise
qualified, from acting as successor notice agent.
(5) A nonresident may act as notice agent if the nonresident
appoints an agent who is a resident of the notice county or who is attorney of
record for the notice agent upon whom service of all papers may be made. The
appointment must be made in writing and filed with the court.
Sec.
25. RCW
11.42.020 and 1995 1st sp.s. c 18 s 59 are each amended to read as follows:
(1)
The notice agent may give nonprobate notice to the creditors of the decedent
if:
(a)
As of the date of the filing ((of a copy)) of the notice to creditors
with the ((clerk of the superior)) court ((for the notice county)),
the notice agent has no knowledge of another person acting as notice agent
or of the appointment ((and qualification)) of a personal
representative in the decedent's estate in the state of Washington ((or of
another person becoming a notice agent)); and
(b)
According to the records of the ((clerk of the superior)) court ((for
the notice county as of 8:00 a.m.)) as are available on the date of
the filing of the notice to creditors, no cause number regarding the
decedent has been issued to any other notice agent and no personal
representative of the decedent's estate had been appointed ((and qualified
and no cause number regarding the decedent had been issued to any other notice
agent by the clerk under RCW 11.42.010)).
(2)
((The notice must state that all persons having claims against the decedent
shall: (a) Serve the same on the notice agent if the notice agent is a
resident of the state of Washington upon whom service of all papers may be
made, or on the nonprobate resident agent for the notice agent, if any, or on
the attorneys of record of the notice agent at their respective address in the
state of Washington; and (b) file an executed copy of the notice with the clerk
of the superior court for the notice county, within: (i)(A) Four months after
the date of the first publication of the notice described in this section; or
(B) four months after the date of the filing of the copy of the notice with the
clerk of the superior court for the notice county, whichever is later; or (ii)
the time otherwise provided in RCW 11.42.050. The four-month time period after
the later of the date of the first publication of the notice to creditors or
the date of the filing of the notice with the clerk of the court is referred to
in this chapter as the "four-month time limitation."
(3)
The notice agent shall declare in the notice in affidavit form or under the
penalty of perjury under the laws of the state of Washington as provided in RCW
9A.72.085 that: (a) The notice agent is entitled to give the nonprobate notice
under subsection (1) of this section; and (b) the notice is being given by the
notice agent as permitted by this section.
(4)
The notice agent shall sign the notice and file it with the clerk of the
superior court for the notice county. The notice must be given as follows:
(a)
The notice agent shall give actual notice as to creditors of the decedent who
become known to the notice agent within the four-month time limitation as
required in RCW 11.42.050;
(b)
The notice agent shall cause the notice to be published once in each week for
three successive weeks in the notice county;
(c)
The notice agent shall file a copy of the notice with the clerk of the superior
court for the notice county; and
(d)
The notice agent shall mail a copy of the notice, including the decedent's
social security number, to the state of Washington, department of social and
health services, office of financial recovery.
(5)
A claim not filed within the four-month time limitation is forever barred, if
not already barred by an otherwise applicable statute of limitations, except as
provided in RCW 11.42.030 or 11.42.050. The bar is effective to bar claims
against both the probate estate of the decedent and nonprobate assets that were
subject to satisfaction of the decedent's general liabilities immediately
before the decedent's death. If a notice to the creditors of a decedent is
published by more than one notice agent and the notice agents are not acting
jointly, the four-month time limitation means the four-month time limitation
that applies to the notice agent who first publishes the notice. Proof by
affidavit or perjury declaration made under RCW 9A.72.085 of the giving and
publication of the notice must be filed with the clerk of the superior court for
the notice county by the notice agent.)) The notice agent must
give notice to the creditors of the decedent, as directed in RCW 11.42.030,
announcing that the notice agent has elected to give nonprobate notice to
creditors and requiring that persons having claims against the decedent present
their claims within the time specified in RCW 11.42.050 or be forever barred as
to claims against the decedent's probate and nonprobate assets.
(a)
The notice agent shall first file the original of the notice with the court.
(b)
The notice agent shall then cause the notice to be published once each week for
three successive weeks in a legal newspaper in the notice county.
(c)
The notice agent may at any time give actual notice to creditors who become
known to the notice agent by serving the notice on the creditor or mailing the
notice to the creditor at the creditor's last known address, by regular first
class mail, postage prepaid.
(d)
The notice agent shall also mail a copy of the notice, including the decedent's
social security number, to the state of Washington department of social and
health services' office of financial recovery.
The
notice agent shall file with the court proof by affidavit of the giving and
publication of the notice.
Sec.
26. RCW
11.42.030 and 1994 c 221 s 33 are each amended to read as follows:
((The
time limitations under this chapter for serving and filing claims do not accrue
to the benefit of a liability or casualty insurer as to claims against either
the decedent or the marital community of which the decedent was a member, or
both, and:
(1)
The claims, subject to applicable statutes of limitation, may at any time be:
(a) Served on the duly acting notice agent, the duly acting resident agent for
the notice agent, or on the attorney for either of them; and (b) filed with the
clerk of the superior court for the notice county; or
(2)
If there is no duly acting notice agent or resident agent for the notice agent,
the claimant as a creditor shall proceed as provided in chapter 11.40 RCW.
However, if no personal representative ever has been appointed for the
decedent, a personal representative must be appointed as provided in chapter
11.28 RCW and the estate opened, in which case the claimant then shall proceed
as provided in chapter 11.40 RCW.
A
claim may be served and filed as provided in this section, notwithstanding that
there is no duly acting notice agent and that no personal representative
previously has been appointed. However, the amount of recovery under the claim
may not exceed the amount of applicable insurance coverages and proceeds, and
the claim so served and filed may not constitute a cloud or lien upon the title
to the assets of the decedent or delay or prevent the transfer or distribution
of assets of the decedent. This section does not serve to extend the
applicable statute of limitations regardless of whether a declaration and oath
has been filed by a notice agent as provided in RCW 11.42.010.)) Notice
under RCW 11.42.020 must contain the following elements in substantially the
following form:
)
CAPTION ) No.
OF CASE ) NONPROBATE
) NOTICE
TO CREDITORS
) RCW
11.42.030
....................... )
The
notice agent named below has elected to give notice to creditors of the
above-named decedent. As of the date of the filing of a copy of this notice
with the court, the notice agent has no knowledge of any other person acting as
notice agent or of the appointment of a personal representative of the
decedent's estate in the state of Washington. According to the records of the
court as are available on the date of the filing of this notice with the court,
a cause number regarding the decedent has not been issued to any other notice
agent and a personal representative of the decedent's estate has not been
appointed.
Any
person having a claim against the decedent must, before the time the claim
would be barred by any otherwise applicable statute of limitations, present the
claim in the manner as provided in RCW 11.42.070 by serving on or mailing to
the notice agent or the notice agent's attorney at the address stated below a
copy of the claim and filing the original of the claim with the court. The
claim must be presented within the later of: (1) Thirty days after the notice
agent served or mailed the notice to the creditor as provided under RCW
11.42.020(2)(c); or (2) four months after the date of first publication of the
notice. If the claim is not presented within this time frame, the claim is
forever barred, except as otherwise provided in RCW 11.42.050 and 11.42.060.
This bar is effective as to claims against both the decedent's probate and
nonprobate assets.
Date
of First
Publication:
The
notice agent declares under penalty of perjury under the laws of the state of
Washington on , [year], at
[city] , [state] that
the foregoing is true and correct.
_________________________
Signature
of Notice Agent
Notice
Agent:
Attorney
for the Notice Agent:
Address for Mailing or Service:
Sec.
27. RCW
11.42.040 and 1994 c 221 s 34 are each amended to read as follows:
((The
notice agent shall exercise reasonable diligence to discover, within the
four-month time limitation, reasonably ascertainable creditors of the
decedent. The notice agent is deemed to have exercised reasonable diligence to
ascertain the creditors upon:
(1)
Conducting, within the four-month time limitation, a reasonable review of the
decedent's correspondence including correspondence received after the date of
death and financial records including checkbooks, bank statements, income tax
returns, and similar materials, that are in the possession of, or reasonably
available to, the notice agent; and
(2)
Having made, with regard to claimants, inquiry of the nonprobate takers of the
decedent's property and of the presumptive heirs, devisees, and legatees of the
decedent, all of whose names and addresses are known, or in the exercise of
reasonable diligence should have been known, to the notice agent.
If
the notice agent conducts the review and makes an inquiry, the notice agent is
presumed to have exercised reasonable diligence to ascertain creditors of the
decedent, and creditors not ascertained in the review or in an inquiry are
presumed not reasonably ascertainable. These presumptions may be rebutted only
by clear, cogent, and convincing evidence. The notice agent may evidence the
review and inquiry by filing an affidavit or declaration under penalty of
perjury form as provided in RCW 9A.72.085 to the effect in the nonprobate
proceeding in the notice county. The notice agent also may petition the
superior court of the notice county for an order declaring that the notice
agent has made a review and inquiry and that only creditors known to the notice
agent after the review and inquiry are reasonably ascertainable. The petition
and hearing must be under the procedures provided in chapter 11.96 RCW, and the
notice specified under RCW 11.96.100 must also be given by publication.)) (1)
For purposes of RCW 11.42.050, a "reasonably ascertainable" creditor
of the decedent is one that the notice agent would discover upon exercise of
reasonable diligence. The notice agent is deemed to have exercised reasonable
diligence upon conducting a reasonable review of the decedent's correspondence,
including correspondence received after the date of death, and financial
records, including personal financial statements, loan documents, checkbooks,
bank statements, and income tax returns, that are in the possession of or
reasonably available to the notice agent.
(2)
If the notice agent conducts the review, the notice agent is presumed to have
exercised reasonable diligence to ascertain creditors of the decedent and any
creditor not ascertained in the review is presumed not reasonably ascertainable
within the meaning of RCW 11.42.050. These presumptions may be rebutted only
by clear, cogent, and convincing evidence.
(3) The notice agent may evidence the review and resulting
presumption by filing with the court an affidavit regarding the facts referred
to in this section. The notice agent may petition the court for an order
declaring that the notice agent has made a review and that any creditors not
known to the notice agent are not reasonably ascertainable. The petition must
be filed under RCW 11.96.070, and the notice specified under RCW 11.96.100 must
also be given by publication.
Sec.
28. RCW
11.42.050 and 1994 c 221 s 35 are each amended to read as follows:
((The
actual notice described in RCW 11.42.020(4)(a), as to a creditor becoming known
to the notice agent within the four-month time limitation, must be given the
creditor by personal service or regular first class mail, addressed to the
creditor's last known address, postage prepaid. The actual notice must be
given before the later of the expiration of the four-month time limitation or
thirty days after a creditor became known to the notice agent within the
four-month time limitation. A known creditor is barred unless the creditor has
filed a claim, as provided in this chapter, within the four-month time
limitation or within thirty days following the date of actual notice to that
creditor, whichever is later. If notice is given by mail, the date of mailing
is the date of notice. This bar is effective as to claims against the included
property as defined in RCW 11.42.010.)) (1) If a notice agent provides
notice under RCW 11.42.020, any person having a claim against the decedent is
forever barred from making a claim or commencing an action against the decedent
if the claim or action is not already barred by an otherwise applicable statute
of limitations, unless the creditor presents the claim in the manner provided
in RCW 11.42.070 within the following time limitations:
(a)
If the notice agent provided notice under RCW 11.42.020(2) (a) and (b) and the
creditor was given actual notice as provided in RCW 11.42.020(2)(c), the
creditor must present the claim within the later of: (i) Thirty days after the
notice agent's service or mailing of notice to the creditor; and (ii) four
months after the date of first publication of the notice;
(b)
If the notice agent provided notice under RCW 11.42.020(2) (a) and (b) and the
creditor was not given actual notice as provided in RCW 11.42.020(2)(c):
(i)
If the creditor was not reasonably ascertainable, as defined in RCW 11.42.040,
the creditor must present the claim within four months after the date of first
publication of the notice;
(ii)
If the creditor was reasonably ascertainable, as defined in RCW 11.42.040, the
creditor must present the claim within twenty-four months after the decedent's
date of death.
(2)
Any otherwise applicable statute of limitations applies without regard to the
tolling provisions of RCW 4.16.190.
(3)
This bar is effective as to claims against both the decedent's probate and
nonprobate assets.
Sec.
29. RCW
11.42.060 and 1994 c 221 s 36 are each amended to read as follows:
(((1)
Whether or not notice under RCW 11.42.020 has been given or should have been
given, if no personal representative has been appointed and qualified, a person
having a claim against the decedent who has not filed the claim within eighteen
months from the date of the decedent's death is forever barred from making a
claim against the decedent, or commencing an action against the decedent, if
the claim or action is not already barred by any otherwise applicable statute
of limitations. However, this eighteen-month limitation does not apply to:
(a)
Claims described in RCW 11.42.030;
(b)
A claim if, during the eighteen-month period following the date of death,
partial performance has been made on the obligation underlying the claim, and
the notice agent has not given the actual notice described in RCW 11.42.020(4)(a);
or
(c)
Claims if, within twelve months after the date of death:
(i)
No notice agent has given the published notice described in RCW
11.42.020(4)(b); and
(ii)
No personal representative has given the published notice described in RCW
11.40.010(2).
Any
otherwise applicable statute of limitations applies without regard to the
tolling provisions of RCW 4.16.190.
(2)
Claims referred to in this section must be filed if there is no duly appointed,
qualified, and acting personal representative and there is a duly declared and
acting notice agent or resident agent for the notice agent. The claims,
subject to applicable statutes of limitation, may at any time be served on the
duly declared and acting notice agent or resident agent for the notice agent,
or on the attorney for either of them.
(3) A claim to be filed under this chapter if there is no duly
appointed, qualified, and acting personal representative but there is a duly
declared and acting notice agent or resident agent for the notice agent and
which claim is not otherwise barred under this chapter must be made in the form
and manner provided under RCW 11.42.020, as if the notice under that section
had been given.)) The time limitations for presenting claims
under this chapter do not accrue to the benefit of any liability or casualty
insurer. Claims against the decedent or the decedent's marital community that
can be fully satisfied by applicable insurance coverage or proceeds need not be
presented within the time limitation of RCW 11.42.050, but the amount of
recovery cannot exceed the amount of the insurance. If a notice agent provides
notice under RCW 11.42.020, the claims may at any time be presented as provided
in RCW 11.42.070, subject to the otherwise relevant statutes of limitations,
and does not constitute a cloud, lien, or encumbrance upon the title to the
decedent's probate or nonprobate assets nor delay or prevent the transfer or
distribution of the decedent's assets. This section does not serve to extend
any otherwise relevant statutes of limitations.
Sec.
30. RCW
11.42.070 and 1994 c 221 s 37 are each amended to read as follows:
((Notice
under RCW 11.42.020 must be in substantially the following form:
In
the Matter of )
)
No.
)
)
NONPROBATE NOTICE TO CREDITORS
Deceased. )
. . . . . . . . . . . . . )
. . . . . . . . . . . . . . . . .,
the undersigned Notice Agent, has elected to give notice to creditors of the
decedent above named under RCW 11.42.020. As of the date of the filing of a
copy of this notice with the Clerk of this Court, the Notice Agent has no
knowledge of the appointment and qualification of a personal representative in
the decedent's estate in the state of Washington or of any other person
becoming a Notice Agent. According to the records of the Clerk of this Court
as of 8:00 a.m. on the date of the filing of this notice with the Clerk, no
personal representative of the decedent's estate had been appointed and
qualified and no cause number regarding the decedent had been issued to any
other Notice Agent by the Clerk of this Court under RCW 11.42.010.
Persons
having claims against the decedent named above must, before the time the claims
would be barred by any otherwise applicable statute of limitations, serve their
claims on: The Notice Agent if the Notice Agent is a resident of the state of
Washington upon whom service of all papers may be made; the Nonprobate Resident
Agent for the Notice Agent, if any; or the attorneys of record for the Notice
Agent at the respective address in the state of Washington listed below, and
file an executed copy of the claim with the Clerk of this Court within four
months after the date of first publication of this notice, or within four
months after the date of the filing of the copy of this notice with the Clerk
of the Court, whichever is later, or, except under those provisions included in
RCW 11.42.030 or 11.42.050, the claim will be forever barred. This bar is
effective as to all assets of the decedent that were subject to satisfaction of
the decedent's general liabilities immediately before the decedent's death
regardless of whether those assets are or would be assets of the decedent's
probate estate or nonprobate assets of the decedent.
Date of filing of this notice with the
Clerk of the Court:
. . . . . .
Date
of first publication of this notice:
. . . . . . . . . . .
The
Notice Agent declares under penalty of perjury under the laws of the State of
Washington on . . . . . . . . ., 19. . .
at [City] , [State]
that the foregoing is true and correct.
........................ .................................
Notice
Agent [signature] Nonprobate Resident Agent
........................ [if
appointed]
[address
in Washington, if any]... [address in Washington]
........................
Attorney
for Notice Agent
[address
in Washington]
[telephone])) (1)
The claimant, the claimant's attorney, or the claimant's agent shall sign the
claim and include in the claim the following information:
... (a)
The name and address of the claimant;
... (b)
The name, address, if different from that of the claimant, and nature of
authority of an agent signing the claim on behalf of the claimant;
... (c)
A statement of the facts or circumstances constituting the basis of the claim;
... (d)
The amount of the claim; and
... (e)
If the claim is secured, unliquidated, contingent, or not yet due, the nature
of the security, the nature of the uncertainty, or the date when it will become
due.
... Failure
to describe correctly the information in (c), (d), or (e) of this subsection,
if the failure is not substantially misleading, does not invalidate the claim.
... (2)
A claim does not need to be supported by affidavit.
... (3)
A claim must be presented within the time limits set forth in RCW 11.42.050
by: (a) Serving on or mailing to, by regular first class mail, the notice
agent or the notice agent's attorney a copy of the signed claim; and (b) filing
the original of the signed claim with the court. A claim is deemed presented
upon the later of the date of postmark or service on the notice agent, or the
notice agent's attorney, and filing with the court.
... (4)
Notwithstanding any other provision of this chapter, if a claimant makes a
written demand for payment within the time limits set forth in RCW 11.42.050,
the notice agent may waive formal defects and elect to treat the demand as a
claim properly filed under this chapter if: (a) The claim was due; (b) the
amount paid was the amount of indebtedness over and above all payments and
offsets; (c) the estate is solvent; and (d) the payment is made in good faith.
Nothing in this chapter limits application of the doctrines of waiver,
estoppel, or detrimental claims or any other equitable principle.
... Sec.
31. RCW
11.42.080 and 1994 c 221 s 38 are each amended to read as follows:
... ((RCW
11.40.020 applies to claims subject to this chapter.)) (1) The notice
agent shall allow or reject all claims presented in the manner provided in RCW
11.42.070. The notice agent may allow or reject a claim, in whole or in part.
... (2)
If the notice agent has not allowed or rejected a claim within the later of
four months from the date of first publication of the notice to creditors and
thirty days from presentation of the claim, the claimant may serve written
notice on the notice agent that the claimant will petition the court to have
the claim allowed. If the notice agent fails to notify the claimant of the
allowance or rejection of the claim within twenty days after the notice agent's
receipt of the claimant's notice, the claimant may petition the court for a
hearing to determine whether the claim should be allowed or rejected, in whole
or in part. If the court substantially allows the claim, the court may allow
the petitioner reasonable attorneys' fees chargeable against the decedent's
assets received by the notice agent or by those appointing the notice agent.
... NEW
SECTION. Sec. 32. A
new section is added to chapter 11.42 RCW to read as follows:
... (1)
The decedent's nonprobate and probate assets that were subject to the
satisfaction of the decedent's general liabilities immediately before the
decedent's death are liable for claims. The decedent's probate assets may be
liable, whether or not there is a probate administration of the decedent's
estate.
... (2)
The notice agent may pay a claim allowed by the notice agent or a judgment on a
claim first prosecuted against a notice agent only out of assets received as a
result of the death of the decedent by the notice agent or by those appointing
the notice agent, except as may be provided by agreement under RCW 11.96.170 or
by court order under RCW 11.96.070.
... Sec.
33. RCW
11.42.090 and 1994 c 221 s 39 are each amended to read as follows:
... (((1)
Property of the decedent that was subject to the satisfaction of the decedent's
general liabilities immediately before the decedent's death is liable for
claims. The property includes, but is not limited to, property of the decedent
that is includable in the decedent's probate estate, whether or not there is a
probate administration of the decedent's estate.
... (2)
A claim approved by the notice agent, and a judgment on a claim first
prosecuted against a notice agent, may be paid only out of assets received as a
result of the death of the decedent by the notice agent or by those appointing
the notice agent under chapter 11.96 RCW, except as may be provided by
agreement under RCW 11.96.170 or by court order under RCW 11.96.070.)) (1)
If the notice agent allows a claim, the notice agent shall notify the claimant
of the allowance by personal service or regular first class mail to the address
stated on the claim. A claim may not be allowed if it is barred by a statute
of limitations.
... (2)
The notice agent shall pay claims allowed in the following order from the
assets of the decedent that are subject to the payment of claims as provided in
section 32 of this act:
... (a)
Costs of administering the assets subject to the payment of claims, including a
reasonable fee to the notice agent, any resident agent for the notice agent,
reasonable attorneys' fees for the attorney for each of them, filing fees,
publication costs, mailing costs, and similar costs and fees;
... (b)
Funeral expenses in a reasonable amount;
... (c)
Expenses of the last sickness in a reasonable amount;
... (d)
Wages due for labor performed within sixty days immediately preceding the death
of the decedent;
... (e)
Debts having preference by the laws of the United States;
... (f)
Taxes, debts, or dues owing to the state;
... (g)
Judgments rendered against the decedent in the decedent's lifetime that are
liens upon real estate on which executions might have been issued at the time
of the death of the decedent and debts secured by mortgages in the order of their
priority; and
... (h)
All other demands against the assets subject to the payment of claims.
... (3) The notice agent may not pay a claim of the notice agent or
other person who has received property by reason of the decedent's death unless
all other claims that have been filed under this chapter, and all debts having
priority to the claim, are paid in full or otherwise settled by agreement,
regardless of whether the other claims are allowed or rejected.
Sec.
34. RCW
11.42.100 and 1994 c 221 s 40 are each amended to read as follows:
(((1)
The notice agent shall approve or reject claims no later than by the end of a
period that is two months after the end of the four-month time limitation
defined as the "review period."
(2)
The notice agent may approve a claim, in whole or in part.
(3)
If the notice agent rejects a claim, in whole or in part, the notice agent
shall notify the claimant of the rejection and file in the office of the clerk
of the court in the notice county an affidavit or declaration under penalty of
perjury under RCW 9A.72.085 showing the notification and the date of the
notification. The notification must be by personal service or certified mail
addressed to the claimant at the claimant's address as stated in the claim. If
a person other than the claimant signed the claim for or on behalf of the
claimant, and the person's business address as stated in the claim is different
from that of the claimant, notification of the rejection also must be made by
personal service or certified mail upon that person. The date of the postmark
is the date of the notification. The notification of the rejection must advise
the claimant, and the person making claim on his, her, or its behalf, if any,
that the claimant must bring suit in the proper court in the notice county
against the notice agent: (a) Within thirty days after notification of
rejection if the notification is made during or after the review period; or (b)
before expiration of thirty days after the end of the four-month time
limitation, if the notification is made during the four-month time limitation,
and that otherwise the claim is forever barred.
(4)
A claimant whose claim either has been rejected by the notice agent or has not
been acted upon within twenty days of written demand for the action having been
given to the notice agent by the claimant during or after the review period
must commence an action against the notice agent in the proper court in the
notice county to enforce the claim of the claimant within the earlier of:
(a)
If the notice of the rejection of the claim has been sent as provided in
subsection (3) of this section: The time for filing an action on a rejected
claim is as provided in subsection (3) of this section; or
(b)
If written demand for approval or rejection is made on the notice agent before
the claim is rejected: Within thirty days following the end of the twenty-day
written demand period where the demand period ends during or after the review
period;
otherwise
the claim is forever barred.
(5)
The notice agent may, either before or after rejection of a claim, compromise
the claim, whether due or not, absolute or contingent, liquidated or
unliquidated.
(6)
A personal representative of the decedent's estate may revoke either or both
of: (a) The rejection of a claim that has been rejected by the notice agent;
or (b) the approval of a claim that has been either approved or compromised by
the notice agent, or both.
(7)
If a notice agent pays a claim that subsequently is revoked by a personal
representative of the decedent, the notice agent may file a claim in the
decedent's estate for the notice agent's payment, and the claim may be allowed
or rejected as other claims, at the election of the personal representative.
(8)
If the notice agent has not received substantially all assets of the decedent
that are liable for claims, then although an action may be commenced on a
rejected claim by a creditor against the notice agent, the notice agent,
notwithstanding any provision in this chapter, may only make an appearance in
the litigation. The notice agent may not answer the action, but must, instead,
cause a petition to be filed for the appointment of a personal representative
of the decedent within thirty days of the service of the creditor's summons and
complaint on the notice agent. A judgment may not be entered in an action
brought by a creditor against the notice agent earlier than twenty days after
the duly appointed, qualified, and acting personal representative of the
decedent has been substituted in that action for the notice agent.)) (1)
If the notice agent rejects a claim, in whole or in part, the claimant must
bring suit against the notice agent within thirty days after notification of
rejection or the claim is forever barred. The notice agent shall notify the
claimant of the rejection and file an affidavit with the court showing the
notification and the date of the notification. The notice agent shall notify
the claimant of the rejection by personal service or certified mail addressed
to the claimant or claimant's agent, if applicable, at the address stated in
the claim. The date of service or of the postmark is the date of
notification. The notification must advise the claimant that the claimant must
bring suit in the proper court against the notice agent within thirty days
after notification of rejection or the claim will be forever barred.
(2)
If a claimant brings suit against the notice agent on a rejected claim and the
notice agent has not received substantially all assets of the decedent that are
liable for claims, the notice agent may only make an appearance in the action
and may not answer the action but must cause a petition to be filed for the
appointment of a personal representative within thirty days after service of
the creditor's action on the notice agent. Under these circumstances, a
judgment may not be entered in an action brought by a creditor against the
notice agent earlier than twenty days after the personal representative has
been substituted in that action for the notice agent.
(3) The notice agent may, before or after rejection of any
claim, compromise the claim, whether due or not, absolute or contingent,
liquidated, or unliquidated.
Sec.
35. RCW
11.42.110 and 1994 c 221 s 41 are each amended to read as follows:
((If a claim has been filed and presented to a notice agent, and
a part of the claim is allowed, the amount of the allowance must be stated in
the indorsement. If the creditor refuses to accept the amount so allowed in
satisfaction of the claim, the creditor may not recover costs in an action the
creditor may bring against the notice agent and against any substituted
personal representative unless the creditor recovers a greater amount than that
offered to be allowed, exclusive of interest and costs.)) The effect of
a judgment rendered against the notice agent shall be only to establish the
amount of the judgment as an allowed claim.
Sec.
36. RCW
11.42.120 and 1994 c 221 s 42 are each amended to read as follows:
((A
debt of a decedent for whose estate no personal representative has been
appointed must be paid in the following order by the notice agent from the
assets of the decedent that are subject to the payment of claims as provided in
RCW 11.42.090:
(1)
Costs of administering the assets subject to the payment of claims, including a
reasonable fee to the notice agent, the resident agent for the notice agent, if
any, reasonable attorneys' fees for the attorney for each of them, filing fees,
publication costs, mailing costs, and similar costs and fees.
(2)
Funeral expenses in a reasonable amount.
(3)
Expenses of the last sickness in a reasonable amount.
(4)
Wages due for labor performed within sixty days immediately preceding the death
of the decedent.
(5)
Debts having preference by the laws of the United States.
(6)
Taxes or any debts or dues owing to the state.
(7)
Judgments rendered against the decedent in the decedent's lifetime that are
liens upon real estate on which executions might have been issued at the time
of the death of the decedent and debts secured by mortgages in the order of
their priority. However, the real estate is subject to the payment of claims
as provided in RCW 11.42.100.
(8)
All other demands against the assets subject to the payment of claims as
provided in RCW 11.42.100.
A
claim of the notice agent or other person who has received property by reason
of the decedent's death may not be paid by the notice agent unless all other
claims that have been filed under this chapter, and all debts having priority
to the claim, are paid in full or otherwise settled by agreement, regardless of
whether the other claims are allowed or rejected, or partly allowed or partly
rejected. In the event of the probate of the decedent's estate, the personal
representative's payment from estate assets of the claim of the notice agent or
other person who has received property by reason of the decedent's death is not
affected by the priority payment provisions of this section.)) If
a judgment was entered against the decedent during the decedent's lifetime, an
execution may not issue on the judgment after the death of the decedent. If a
notice agent is acting, the judgment must be presented in the manner provided
in RCW 11.42.070, but if the judgment is a lien on any property of the
decedent, the property may be sold for the satisfaction of the judgment and the
officer making the sale shall account to the notice agent for any surplus.
NEW
SECTION. Sec. 37. A
new section is added to chapter 11.42 RCW to read as follows:
If a creditor's claim is secured by any property of the decedent,
this chapter does not affect the right of the creditor to realize on the
creditor's security, whether or not the creditor presented the claim in the
manner provided in RCW 11.42.070.
Sec.
38. RCW
11.42.130 and 1994 c 221 s 43 are each amended to read as follows:
((The
notice agent may not allow a claim that is barred by the statute of
limitations.)) A claim of the notice agent or other person who has
received property by reason of the decedent's death must be paid as set forth
in RCW 11.42.090(3).
Sec.
39. RCW
11.42.140 and 1994 c 221 s 45 are each amended to read as follows:
((The
time during which there is a vacancy in the office of notice agent is not
included in a limitation prescribed in this chapter.)) (1) If a notice
agent has given notice under RCW 11.42.020 and the notice agent resigns, dies,
or is removed or a personal representative is appointed, the successor notice
agent or the personal representative shall:
(a)
Publish notice of the vacancy and succession for two successive weeks in the
legal newspaper in which notice was published under RCW 11.42.020, if the
vacancy occurred within twenty-four months after the decedent's date of death;
and
(b)
Provide actual notice of the vacancy and succession to a creditor if: (i) The
creditor filed a claim and the claim had not been allowed or rejected by the
prior notice agent; or (ii) the creditor's claim was rejected and the vacancy
occurred within thirty days after rejection of the claim.
(2) The time between the resignation, death, or removal of the
notice agent or appointment of a personal representative and the first
publication of the vacancy and succession or, in the case of actual notice, the
mailing of the notice of vacancy and succession must be added to the time
within which a claim must be presented or a suit on a rejected claim must be
filed. This section does not extend the twenty-four-month self-executing bar
under RCW 11.42.050.
Sec.
40. RCW
11.42.150 and 1994 c 221 s 44 are each amended to read as follows:
((A
holder of a claim against a decedent may not maintain an action on the claim
against a notice agent, unless the claim has been first presented as provided
in this chapter. This chapter does not affect RCW 82.32.240.)) (1) The
powers and authority of a notice agent immediately cease, and the office of
notice agent becomes vacant, upon appointment of a personal representative for
the estate of the decedent. Except as provided in RCW 11.42.140(2), the
cessation of the powers and authority does not affect the filing and
publication of notice to creditors and does not affect actual notice to
creditors given by the notice agent.
(2)
As set forth in section 23 of this act, a personal representative may adopt,
ratify, nullify, or reject any actions of the notice agent.
(3) If a personal representative is appointed and the personal
representative does not nullify the allowance of a claim that the notice agent
allowed and paid, the person or persons whose assets were used to pay the claim
may petition for reimbursement from the estate to the extent the payment was
not in accordance with chapter 11.10 RCW.
Sec.
41. RCW
11.44.015 and 1967 c 168 s 9 are each amended to read as follows:
(1)
Within three months after ((his)) appointment, unless a longer time
shall be granted by the court, every personal representative shall make and ((return
upon oath into the court)) verify by affidavit a true inventory and
appraisement of all of the property of the estate passing under the will
or by laws of intestacy and which shall have come to ((his)) the
personal representative's possession or knowledge, including a statement of
all encumbrances, liens, or other secured charges against any item. The
personal representative shall determine the fair net value, as of the date of
the decedent's death, of each item contained in the inventory after deducting
the encumbrances, liens, and other secured charges on the item. Such
property shall be classified as follows:
(((1)))
(a) Real property, by legal description ((and assessed valuation of
land and improvements thereon));
(((2)))
(b) Stocks and bonds;
(((3)))
(c) Mortgages, notes, and other written evidences of debt;
(((4)))
(d) Bank accounts and money;
(((5)))
(e) Furniture and household goods;
(((6)))
(f) All other personal property accurately identified, including the
decedent's proportionate share in any partnership, but no inventory of the
partnership property shall be required of the personal representative.
(2)
The inventory and appraisement may, but need not be, filed in the probate
cause, but upon receipt of a written request for a copy of the inventory and
appraisement from any heir, legatee, devisee, unpaid creditor who has filed a
claim, or beneficiary of a nonprobate asset from whom contribution is sought
under RCW 11.18.200, or from the department of revenue, the personal
representative shall furnish to the person, within ten days of receipt of a
request, a true and correct copy of the inventory and appraisement.
Sec.
42. RCW
11.44.025 and 1974 ex.s. c 117 s 48 are each amended to read as follows:
Whenever
any property of the estate not mentioned in the inventory and appraisement
comes to the knowledge of a personal representative, ((he)) the
personal representative shall cause the ((same)) property to
be inventoried and appraised and shall make and ((return upon oath into the
court)) verify by affidavit a true inventory and appraisement
of ((said)) the property within thirty days after the discovery
thereof, unless a longer time shall be granted by the court, and shall
provide a copy of the inventory and appraisement to every person who has
properly requested a copy of the inventory and appraisement under RCW
11.44.015(2).
Sec.
43. RCW
11.44.035 and 1965 c 145 s 11.44.035 are each amended to read as follows:
In
an action against the personal representative where ((his)) the
administration of the estate, or any part thereof, is put in issue and the
inventory and appraisement of the estate ((returned)) by ((him,
or the appraisal thereof)) the personal representative is given in
evidence, the same may be contradicted or avoided by evidence. Any party in
interest in the estate may challenge the inventory ((or)) and
appraisement at any stage of the probate proceedings.
Sec.
44. RCW
11.44.050 and 1965 c 145 s 11.44.050 are each amended to read as follows:
If
any personal representative shall neglect or refuse to ((return)) make
the inventory and appraisement within the period prescribed, or within
such further time as the court may allow, or to provide a copy as provided
under RCW 11.44.015, 11.44.025, or 11.44.035, the court may revoke the
letters testamentary or of administration; and the personal representative
shall be liable on his or her bond to any party interested for the
injury sustained by the estate through his or her neglect.
Sec.
45. RCW
11.44.070 and 1974 ex.s. c 117 s 50 are each amended to read as follows:
The
personal representative may employ a qualified and disinterested person to
assist in ascertaining the fair market value as of the date of the decedent's
death of any asset the value of which may be subject to reasonable doubt.
Different persons may be employed to appraise different kinds of assets
included in the estate. The amount of the fee to be paid to any persons
assisting the personal representative in any appraisement shall be determined
by the personal representative: PROVIDED HOWEVER, That the reasonableness of
any such compensation shall, at the time of hearing on any final account as
provided in chapter 11.76 RCW or on a request or petition under RCW 11.68.100
or 11.68.110, be reviewed by the court in accordance with the provisions of RCW
11.68.100, and if the court determines the compensation to be unreasonable, a
personal representative may be ordered to make appropriate refund.
Sec.
46. RCW
11.44.085 and 1965 c 145 s 11.44.085 are each amended to read as follows:
The
naming or the appointment of any person as personal representative shall not
operate as a discharge from any just claim which the testator or intestate had
against the personal representative, but the claim shall be included in the
inventory and appraisement and the personal representative shall be
liable to the same extent as ((he)) the personal representative
would have been had he or she not been appointed personal
representative.
Sec.
47. RCW
11.44.090 and 1965 c 145 s 11.44.090 are each amended to read as follows:
The
discharge or bequest in a will of any debt or demand of the testator against
any executor named in ((his)) the testator's will or against any
person shall not be valid against the creditors of the deceased, but shall be
construed as a specific bequest of such debt or demand, and the amount thereof
shall be included in the inventory and appraisement, and shall, if
necessary, be applied in payment of ((his)) the testator's debts;
if not necessary for that purpose, it shall be paid in the same manner and
proportions as other specific legacies.
NEW
SECTION. Sec. 48. (1)
Subject to section 50 of this act, the surviving spouse of a decedent may
petition the court for an award from the property of the decedent. If the
decedent is survived by children of the decedent who are not also the children
of the surviving spouse, on petition of such a child the court may divide the
award between the surviving spouse and all or any of such children as it deems
appropriate. If there is not a surviving spouse, the minor children of the
decedent may petition for an award.
(2)
The award may be made from either the community property or separate property
of the decedent. Unless otherwise ordered by the court, the probate and
nonprobate assets of the decedent abate in accordance with chapter 11.10 RCW in
satisfaction of the award.
(3)
The award may be made whether or not probate proceedings have been commenced in
the state of Washington. The court may not make this award unless the petition
for the award is filed before the earliest of:
(a)
Eighteen months from the date of the decedent's death if within twelve months
of the decedent's death either:
(i)
A personal representative has been appointed; or
(ii)
A notice agent has filed a declaration and oath as required in RCW
11.42.010(3)(a)(ii); or
(b)
The termination of any probate proceeding for the decedent's estate that has
been commenced in the state of Washington; or
(c)
Six years from the date of the death of the decedent.
NEW
SECTION. Sec. 49. The
amount of the basic award shall be the amount specified in RCW 6.13.030(2) with
regard to lands. If an award is divided between a surviving spouse and the
decedent's children who are not the children of the surviving spouse, the
aggregate amount awarded to all the claimants under this section shall be the
amount specified in RCW 6.13.030(2) with respect to lands. The amount of the
basic award may be increased or decreased in accordance with sections 51 and 52
of this act.
NEW
SECTION. Sec. 50. (1)
The court may not make an award unless the court finds that the funeral
expenses, expenses of last sickness, and expenses of administration have been
paid or provided for.
(2)
The court may not make an award to a surviving spouse or child who has
participated, either as a principal or as an accessory before the fact, in the
willful and unlawful killing of the decedent.
NEW
SECTION. Sec. 51. (1)
If it is demonstrated to the satisfaction of the court with clear, cogent, and
convincing evidence that a claimant's present and reasonably anticipated future
needs during the pendency of any probate proceedings in the state of Washington
with respect to basic maintenance and support will not otherwise be provided
for from other resources, and that the award would not be inconsistent with the
decedent's intentions, the amount of the award may be increased in an amount
the court determines to be appropriate.
(2)
In determining the needs of the claimant, the court shall consider, without
limitation, the resources available to the claimant and the claimant's
dependents, and the resources reasonably expected to be available to the
claimant and the claimant's dependents during the pendency of the probate,
including income related to present or future employment and benefits flowing
from the decedent's probate and nonprobate estate.
(3)
In determining the intentions of the decedent, the court shall consider,
without limitation:
(a)
Provisions made for the claimant by the decedent under the terms of the
decedent's will or otherwise;
(b)
Provisions made for third parties or other entities under the decedent's will
or otherwise that would be affected by an increased award;
(c)
If the claimant is the surviving spouse, the duration and status of the
marriage of the decedent to the claimant at the time of the decedent's death;
(d)
The effect of any award on the availability of any other resources or benefits
to the claimant;
(e)
The size and nature of the decedent's estate; and
(f)
Oral or written statements made by the decedent that are otherwise admissible
as evidence.
The
fact that the decedent has named beneficiaries other than the claimant as
recipients of the decedent's estate is not of itself adequate to evidence such
an intent as would prevent the award of an amount in excess of that provided
for in RCW 6.13.030(2) with respect to lands.
(4)(a)
A petition for an increased award may only be made if a petition for an award
has been granted under section 48 of this act. The request for an increased
award may be made in conjunction with the petition for an award under section
48 of this act.
(b)
Subject to (a) of this subsection, a request for an increased award may be made
at any time during the pendency of the probate proceedings. A request to
modify an increased award may also be made at any time during the pendency of
the probate proceedings by a person having an interest in the decedent's estate
that will be directly affected by the requested modification.
NEW
SECTION. Sec. 52. (1)
The court may decrease the amount of the award below the amount provided in section
49 of this act in the exercise of its discretion if the recipient is entitled
to receive probate or nonprobate property, including insurance, by reason of
the death of the decedent. In such a case the award must be decreased by no
more than the value of such other property as is received by reason of the
death of the decedent. The court shall consider the factors presented in
section 51(2) of this act in determining the propriety of the award and the
proper amount of the award, if any.
(2)
An award to a surviving spouse is also discretionary and the amount otherwise
allowable may be reduced if: (a) The decedent is survived by children who are
not the children of the surviving spouse and the award would decrease amounts
otherwise distributable to such children; or (b) the award would have the
effect of reducing amounts otherwise distributable to any of the decedent's
minor children. In either case the court shall consider the factors presented
in section 51 (2) and (3) of this act and whether the needs of the minor
children with respect to basic maintenance and support are and will be
adequately provided for, both during and after the pendency of any probate
proceedings if such proceedings are pending, considering support from any
source, including support from the surviving spouse.
NEW
SECTION. Sec. 53. (1)
The award has priority over all other claims made in the estate. In
determining which assets must be made available to satisfy the award, the
claimant is to be treated as a general creditor of the estate, and unless
otherwise ordered by the court the assets shall abate in satisfaction of the
award in accordance with chapter 11.10 RCW.
(2)
If the property awarded is being purchased on contract or is subject to any encumbrance,
for purposes of the award the property must be valued net of the balance due on
the contract and the amount of the encumbrance. The property awarded will
continue to be subject to any such contract or encumbrance, and any award in
excess of the basic award under section 48 of this act, whether of community
property or the decedent's separate property, is not immune from any lien for
costs of medical expenses recoverable under RCW 43.20B.080.
NEW
SECTION. Sec. 54. (1)
Except as provided in subsection (2) of this section, property awarded and cash
paid under this chapter is immune from all debts, including judgments and
judgment liens, of the decedent and of the surviving spouse existing at the
time of death.
(2)
Both the decedent's and the surviving spouse's interests in any community
property awarded to the spouse under this chapter are immune from the claims of
creditors.
NEW
SECTION. Sec. 55. (1)
This section applies if the party entitled to petition for an award holds
exempt property that is in an aggregate amount less than that specified in RCW
6.13.030(2) with respect to lands.
(2)
For purposes of this section, the party entitled to petition for an award is
referred to as the "claimant." If multiple parties are entitled to
petition for an award, all of them are deemed a "claimant" and may
petition for an exemption of additional assets as provided in this section, if
the aggregate amount of exempt property to be held by all the claimants after
the making of the award does not exceed the amount specified in RCW 6.13.030(2)
with respect to lands.
(3)
A claimant may petition the court for an order exempting other assets from the
claims of creditors so that the aggregate amount of exempt property held by the
claimants equals the amount specified in RCW 6.13.030(2) with respect to
lands. The petition must:
(a)
Set forth facts to establish that the petitioner is entitled to petition for an
award under section 48 of this act;
(b)
State the nature and value of those assets then held by all claimants that are
exempt from the claims of creditors; and
(c)
Describe the nonexempt assets then held by the claimants, including any
interest the claimants may have in any probate or nonprobate property of the
decedent.
(4)
Notice of a petition for an order exempting assets from the claims of creditors
must be given in accordance with RCW 11.96.100.
(5)
At the hearing on the petition, the court shall order that certain assets of
the claimants are exempt from the claims of creditors so that the aggregate
amount of exempt property held by the claimants after the entry of the order is
in the amount specified in RCW 6.13.030(2) with respect to lands. In the order
the court shall designate those assets of the claimants that are so exempt.
NEW
SECTION. Sec. 56. The
petition for an award, for an increased or modified award, or for the exemption
of assets from the claims of creditors as authorized by this chapter must be
made to the court of the county in which the probate is being administered. If
probate proceedings have not been commenced in the state of Washington, the
petition must be made to the court of a county in which the decedent's estate
could be administered under RCW 11.96.050 if the decedent held personal
property subject to probate in the county of the decedent's domicile. The
petition and the hearing must conform to RCW 11.96.070. Notice of the hearing
on the petition must be given in accordance with RCW 11.96.100.
NEW
SECTION. Sec. 57. If an
award provided by this chapter will exhaust the estate, and probate proceedings
have been commenced in the state of Washington, the court in the order of award
or allowance shall order the estate closed, discharge the personal
representative, and exonerate the personal representative's bond, if any.
Sec.
58. RCW
11.48.130 and 1965 c 145 s 11.48.130 are each amended to read as follows:
The
court ((shall have power to)) may authorize the personal
representative, without the necessary nonintervention powers, to
compromise and compound any claim owing the estate. Unless the court has
restricted the power to compromise or compound claims owing to the estate, a
personal representative with nonintervention powers may compromise and compound
a claim owing the estate without the intervention of the court.
NEW
SECTION. Sec. 59. A
new section is added to chapter 11.68 RCW to read as follows:
(1)
A personal representative may petition the court for nonintervention powers,
whether the decedent died testate or intestate.
(2)
Unless the decedent has specified in the decedent's will, if any, that the
court not grant nonintervention powers to the personal representative, the
court shall grant nonintervention powers to a personal representative who
petitions for the powers if the court determines that the decedent's estate is
solvent, taking into account probate and nonprobate assets, and that:
(a)
The petitioning personal representative was named in the decedent's probated
will as the personal representative;
(b)
The decedent died intestate, the petitioning personal representative is the
decedent's surviving spouse, the decedent's estate is composed of community
property only, and the decedent had no issue: (i) Who is living or in
gestation on the date of the petition; (ii) whose identity is reasonably
ascertainable on the date of the petition; and (iii) who is not also the issue
of the petitioning spouse; or
(c)
The personal representative was not a creditor of the decedent at the time of
the decedent's death and the administration and settlement of the decedent's
will or estate with nonintervention powers would be in the best interests of
the decedent's beneficiaries and creditors. However, the administration and
settlement of the decedent's will or estate with nonintervention powers will be
presumed to be in the beneficiaries' and creditors' best interest until a
person entitled to notice under section 61 of this act rebuts that presumption
by coming forward with evidence that the grant of nonintervention powers would
not be in the beneficiaries' or creditors' best interests.
(3)
The court may base its findings of facts necessary for the grant of
nonintervention powers on: (a) Statements of witnesses appearing before the
court; (b) representations contained in a verified petition for nonintervention
powers, in an inventory made and returned upon oath into the court, or in an
affidavit filed with the court; or (c) other proof submitted to the court.
NEW
SECTION. Sec. 60. A
new section is added to chapter 11.68 RCW to read as follows:
A
hearing on a petition for nonintervention powers may be held at the time of the
appointment of the personal representative or at any later time.
NEW
SECTION. Sec. 61. A
new section is added to chapter 11.68 RCW to read as follows:
(1)
Advance notice of the hearing on a petition for nonintervention powers referred
to in section 59 of this act is not required in those circumstances in which
the court is required to grant nonintervention powers under section 59(2) (a)
and (b) of this act.
(2)
In all other cases, if the petitioner wishes to obtain nonintervention powers,
the personal representative shall give notice of the petitioner's intention to
apply to the court for nonintervention powers to all heirs, all beneficiaries
of a gift under the decedent's will, and all persons who have requested, and
who are entitled to, notice under RCW 11.28.240, except that:
(a)
A person is not entitled to notice if the person has, in writing, either waived
notice of the hearing or consented to the grant of nonintervention powers; and
(b)
An heir who is not also a beneficiary of a gift under a will is not entitled to
notice if the will has been probated and the time for contesting the validity
of the will has expired.
(3)
The notice required by this section must be either personally served or sent by
regular mail at least ten days before the date of the hearing, and proof of
mailing of the notice must be by affidavit filed in the cause. The notice must
contain the decedent's name, the probate cause number, the name and address of
the personal representative, and must state in substance as follows:
(a)
The personal representative has petitioned the superior court of the state of
Washington for . . . . . county, for the entry of an order granting nonintervention
powers and a hearing on that petition will be held on
. . . . ., the . . . . . day of
. . . . ., . . . ., at
. . . . . o'clock, . . M.;
(b)
The petition for an order granting nonintervention powers has been filed with
the court;
(c)
Following the entry by the court of an order granting nonintervention powers,
the personal representative is entitled to administer and close the decedent's
estate without further court intervention or supervision; and
(d)
A person entitled to notice has the right to appear at the time of the hearing
on the petition for an order granting nonintervention powers and to object to
the granting of nonintervention powers to the personal representative.
(4)
If notice is not required, or all persons entitled to notice have either waived
notice of the hearing or consented to the entry of an order granting
nonintervention powers as provided in this section, the court may hear the
petition for an order granting nonintervention powers at any time.
Sec.
62. RCW
11.68.050 and 1977 ex.s. c 234 s 21 are each amended to read as follows:
(1)
If at the time set for the hearing upon ((the)) a petition for ((the
entry of an order of solvency)) nonintervention powers, any person
entitled to notice of the hearing on the petition under ((the
provisions of RCW 11.68.040 as now or hereafter amended,)) section 61 of
this act shall appear and object to the granting of nonintervention powers
to the personal representative of the estate, the court shall consider ((said
objections, if any, and the entry of an order of solvency shall be
discretionary with the court upon being satisfied by proof as required in RCW
11.68.010 as now or hereafter amended. If an order of solvency is entered))
the objections, if any, in connection with its determination under section
59(2)(c) of this act of whether a grant of nonintervention powers would be in
the best interests of the decedent's beneficiaries.
(2)
The nonintervention powers of a personal representative may not be restricted
at a hearing on a petition for nonintervention powers in which the court is
required to grant nonintervention powers under section 59(2) (a) and (b) of
this act, unless a will specifies that the nonintervention powers of a personal
representative may be restricted when the powers are initially granted. In all
other cases, including without limitation any hearing on a petition that
alleges that the personal representative has breached its duties to the
beneficiaries of the estate, the court may restrict the powers of the
personal representative in such manner as the court determines((. If no
objection is made at the time of the hearing by any person entitled to notice
thereof, the court shall enter an order of solvency upon being satisfied by
proof as required in RCW 11.68.010 as now or hereafter amended)) to be
in the best interests of the decedent's beneficiaries.
Sec.
63. RCW
11.68.060 and 1977 ex.s. c 234 s 22 are each amended to read as follows:
If((,
after the entry of an order of solvency,)) any personal representative of
the estate of the decedent ((shall)) dies, resigns, or
otherwise becomes disabled from any cause from acting as the
nonintervention personal representative, ((the successor personal
representative, other than a creditor of a decedent not designated as a
personal representative in the decedent's will, shall administer the estate of
the decedent without the intervention of court after notice and hearing as
required by RCW 11.68.040 and 11.68.050 as now or hereafter amended, unless at
the time of said hearing objections to the granting of nonintervention powers
to such successor personal representative shall be made by an heir, legatee,
devisee, or other person entitled to notice pursuant to RCW 11.28.240 as now
existing or hereafter amended, and unless the court, after hearing said
objections shall refuse to grant nonintervention powers to such successor
personal representative. If no heir, legatee, devisee, or other person
entitled to notice shall appear at the time of the hearing to object to the
granting of nonintervention powers to such successor personal representative,
the court shall enter an order granting nonintervention powers to)) the
successor personal representative, or a person who has petitioned to be
appointed as a successor personal representative, may petition the court for
nonintervention powers, and the court shall act, in accordance with sections 59
through 61 of this act and RCW 11.68.050.
NEW
SECTION. Sec. 64. A
new section is added to chapter 11.68 RCW to read as follows:
A
beneficiary whose interest in an estate has not been fully paid or distributed
may petition the court for an order directing the personal representative to
deliver a report of the affairs of the estate signed and verified by the
personal representative. The petition may be filed at any time after one year
from the day on which the report was last delivered, or, if none, then one year
after the order appointing the personal representative. Upon hearing of the
petition after due notice as required in chapter 11.96 RCW, the court may, for
good cause shown, order the personal representative to deliver to the
petitioner the report for any period not covered by a previous report. The
report for the period shall include such of the following as the court may
order: A description of the amount and nature of all property, real and
personal, that has come into the hands of the personal representative; a
statement of all property collected and paid out or distributed by the personal
representative; a statement of claims filed and allowed against the estate and
those rejected; any estate, inheritance, or fiduciary income tax returns filed
by the personal representative; and such other information as the order may
require. This subsection does not limit any power the court might otherwise
have at any time during the administration of the estate to require the
personal representative to account or furnish other information to any person
interested in the estate.
Sec.
65. RCW
11.68.080 and 1977 ex.s. c 234 s 24 are each amended to read as follows:
((After
such notice as the court may require, the order of solvency shall be vacated or
restricted upon the petition of any personal representative, heir, legatee,
devisee, or creditor, if supported by proof satisfactory to the court that said
estate has become insolvent.
If,
after hearing, the court shall vacate or restrict the prior order of solvency,
the court shall endorse the term "Vacated" or "Powers
restricted" upon the original order of solvency)) (1)
Within ten days after the personal representative has received from alleged
creditors under chapter 11.40 RCW claims that have an aggregate face value
that, when added to the other debts and to the taxes and expenses of greater
priority under applicable law, would appear to cause the estate to be
insolvent, the personal representative shall notify in writing all
beneficiaries under the decedent's will and, if any of the decedent's property
will pass according to the laws of intestate succession, all heirs, together
with any unpaid creditors, other than a creditor whose claim is then barred
under chapter 11.40 RCW or the otherwise applicable statute of limitations,
that the estate might be insolvent. The personal representative shall file a
copy of the written notice with the court.
(2)
Within ten days after an estate becomes insolvent, the personal representative
shall petition under chapter 11.96 RCW for a determination of whether the court
should reaffirm, rescind, or restrict in whole or in part any prior grant of
nonintervention powers. Notice of the hearing must be given in accordance with
RCW 11.96.100 and 11.96.110.
(3)
If, upon a petition under chapter 11.96 RCW of any personal representative,
beneficiary under the decedent's will, heir if any of the decedent's property
passes according to the laws of intestate succession, or any unpaid creditor
with a claim that has been accepted or judicially determined to be enforceable,
the court determines that the decedent's estate is insolvent, the court shall
reaffirm, rescind, or restrict in whole or in part any prior grant of
nonintervention powers to the extent necessary to protect the best interests of
the beneficiaries and creditors of the estate.
(4)
If the court rescinds or restricts a prior grant of nonintervention powers, the
court shall endorse the term "powers rescinded" or "powers
restricted" upon the prior order together with the date of ((said))
the endorsement.
Sec.
66. RCW
11.68.090 and 1988 c 29 s 3 are each amended to read as follows:
(1)
Any personal representative acting under nonintervention powers may borrow
money on the general credit of the estate and may mortgage, encumber, lease,
sell, exchange, convey, and otherwise ((do anything a trustee may do)) have
the same powers, and be subject to the same limitations of liability, that a
trustee has under RCW 11.98.070 and chapters 11.100 and 11.102 RCW with
regard to the assets of the estate, both real and personal, all without an
order of court and without notice, approval, or confirmation, and in all other
respects administer and settle the estate of the decedent without intervention of
court. ((Any party to any such transaction and his or her successors in
interest shall be entitled to have it conclusively presumed that the
transaction is necessary for the administration of the decedent's estate.))
Except as otherwise specifically provided in this ((chapter)) title
or by order of court, ((chapter 11.76 RCW shall not apply to the
administration of an estate by)) a personal representative acting under
nonintervention powers may exercise the powers granted to a personal
representative under chapter 11.76 RCW but is not obligated to comply with the
duties imposed on personal representatives by that chapter. A party to such a
transaction and the party's successors in interest are entitled to have it
conclusively presumed that the transaction is necessary for the administration
of the decedent's estate.
(2)
Except as otherwise provided in chapter 11.108 RCW or elsewhere in order to
preserve a marital deduction from estate taxes, a testator may by a will
relieve the personal representative from any or all of the duties,
restrictions, and liabilities imposed: Under common law; by chapters 11.--
(sections 48 through 57 of this act), 11.56, 11.100, 11.102, and 11.104 RCW; or
by RCW 11.28.270 and 11.28.280, section 67 of this act, and RCW 11.98.070. In
addition, a testator may likewise alter or deny any or all of the privileges
and powers conferred by this title, and may add duties, restrictions,
liabilities, privileges, or powers to those imposed or granted by this title.
If any common law or any statute referenced earlier in this subsection is in
conflict with a will, the will controls whether or not specific reference is
made in the will to this section. However, notwithstanding the rest of this
subsection, a personal representative may not be relieved of the duty to act in
good faith and with honest judgment.
NEW
SECTION. Sec. 67. A
new section is added to chapter 11.68 RCW to read as follows:
All
of the provisions of RCW 11.98.016 regarding the exercise of powers by
co-trustees of a trust shall apply to the co-personal representatives of an
estate in which the co-personal representatives have been granted
nonintervention powers, as if, for purposes of the interpretation of that law,
co-personal representatives were co-trustees and an estate were a trust.
Sec.
68. RCW
11.68.110 and 1990 c 180 s 5 are each amended to read as follows:
(1)
If a personal representative who has acquired nonintervention powers does not
apply to the court for either of the final decrees provided for in RCW
11.68.100 as now or hereafter amended, the personal representative shall, when
the administration of the estate has been completed, file a declaration ((to
that effect, which declaration shall)) that must state as follows:
(((1)))
(a) The date of the decedent's death((,)) and the decedent's
residence at the time of death((,));
(b)
Whether or not the decedent died testate or intestate((, and if));
(c)
If the decedent died testate, the date of the decedent's last will and
testament and the date of the order ((admitting the will to probate)) probating
the will;
(((2)))
(d) That each creditor's claim which was justly due and properly
presented as required by law has been paid or otherwise disposed of by
agreement with the creditor, and that the amount of estate taxes due as the
result of the decedent's death has been determined, settled, and paid;
(((3)))
(e) That the personal representative has completed the administration of
the decedent's estate without court intervention, and the estate is ready to be
closed;
(((4)))
(f) If the decedent died intestate, the names, addresses (if known), and
relationship of each heir of the decedent, together with the distributive share
of each heir; and
(((5)))
(g) The amount of fees paid or to be paid to each of the following: (((a)))
(i) Personal representative or representatives((, (b))); (ii)
lawyer or lawyers((, (c))); (iii) appraiser or appraisers((,));
and (((d))) (iv) accountant or accountants; and that the personal
representative believes the fees to be reasonable and does not intend to obtain
court approval of the amount of the fees or to submit an estate accounting to
the court for approval.
(2)
Subject to the requirement of notice as provided in this section, unless an
heir, devisee, or legatee of a decedent petitions the court either for an order
requiring the personal representative to obtain court approval of the amount of
fees paid or to be paid to the personal representative, lawyers, appraisers, or
accountants, or for an order requiring an accounting, or both, within thirty
days from the date of filing a declaration of completion of probate, the
personal representative will be automatically discharged without further order
of the court and the representative's powers will cease thirty days after the
filing of the declaration of completion of probate, and the declaration of
completion of probate shall, at that time, be the equivalent of the entry of a
decree of distribution in accordance with chapter 11.76 RCW for all legal
intents and purposes.
(3)
Within five days of the date of the filing of the declaration of completion,
the personal representative or the personal representative's lawyer
shall mail a copy of the declaration of completion to each heir, legatee, or
devisee of the decedent ((()), who has not waived notice of ((said))
the filing, in writing, filed in the cause(())), or who, not
having waived notice, either has not received the full amount of the
distribution to which the heir, legatee, or devisee is entitled or has a
property right that might be affected adversely by the discharge of the
personal representative under this section, together with a notice which
shall be substantially as follows:
CAPTION NOTICE OF FILING OF
OF DECLARATION OF COMPLETION
CASE OF
PROBATE
NOTICE
IS GIVEN that the attached Declaration of Completion of Probate was filed by
the undersigned in the above-entitled court on the . . . . day
of . . . . . ., 19. . .; unless you shall
file a petition in the above-entitled court requesting the court to approve the
reasonableness of the fees, or for an accounting, or both, and serve a copy
thereof upon the personal representative or the personal representative's
lawyer, within thirty days after the date of the filing, the amount of fees
paid or to be paid will be deemed reasonable, the acts of the personal
representative will be deemed approved, the personal representative will be
automatically discharged without further order of the court, and the
Declaration of Completion of Probate will be final and deemed the equivalent of
a Decree of Distribution entered under chapter 11.76 RCW.
If
you file and serve a petition within the period specified, the undersigned will
request the court to fix a time and place for the hearing of your petition, and
you will be notified of the time and place thereof, by mail, or personal
service, not less than ten days before the hearing on the petition.
Dated this . . . . day of
. . . . . ., 19. . .
........................................
Personal
Representative
(4)
If all heirs, devisees, and legatees of the decedent entitled to notice
under this section waive, in writing, the notice required by this section,
the personal representative will be automatically discharged without further
order of the court and the declaration of completion of probate will become
effective as a decree of distribution upon the date of filing thereof. In
those instances where the personal representative has been required to furnish
bond, and a declaration of completion is filed pursuant to this section, any
bond furnished by the personal representative shall be automatically discharged
upon the discharge of the personal representative.
NEW
SECTION. Sec. 69. A
new section is added to chapter 11.68 RCW to read as follows:
If
the declaration of completion of probate and the notice of filing of
declaration of completion of probate state that the personal representative
intends to make final distribution within five business days after the final
date on which a beneficiary could petition for an order to approve fees or to
require an accounting, which date is referred to in this section as the
"effective date of the declaration of completion," and if the notice
of filing of declaration of completion of probate sent to each beneficiary who
has not received everything to which that beneficiary is entitled from the
decedent's estate specifies the amount of the minimum distribution to be made
to that beneficiary, the personal representative retains, for five business
days following the effective date of the declaration of completion, the power
to make the stated minimum distributions. In this case, the personal
representative is discharged from all claims other than those relating to the
actual distribution of the reserve, at the effective date of the declaration of
completion. The personal representative is only discharged from liability for
the distribution of the reserve when the whole reserve has been distributed and
each beneficiary has received at least the distribution which that
beneficiary's notice stated that the beneficiary would receive.
NEW
SECTION. Sec. 70. A
new section is added to chapter 11.68 RCW to read as follows:
(1)
The personal representative retains the powers to: Deal with the taxing
authority of any federal, state, or local government; hold a reserve in an
amount not to exceed three thousand dollars, for the determination and payment
of any additional taxes, interest, and penalties, and of all reasonable
expenses related directly or indirectly to such determination or payment; pay
from the reserve the reasonable expenses, including compensation for services
rendered or goods provided by the personal representative or by the personal
representative's employees, independent contractors, and other agents, in
addition to any taxes, interest, or penalties assessed by a taxing authority;
receive and hold any credit, including interest, from any taxing authority; and
distribute the residue of the reserve to the intended beneficiaries of the
reserve; if:
(a)
In lieu of the statement set forth in RCW 11.68.110(1)(e), the declaration of
completion of probate states that:
The personal representative has completed the administration
of the decedent's estate without court intervention, and the estate is ready to
be closed, except for the determination of taxes and of interest and penalties
thereon as permitted under this section;
and
(b)
The notice of the filing of declaration of completion of probate must be in
substantially the following form:
CAPTION NOTICE
OF FILING OF
OF DECLARATION OF COMPLETION
CASE OF
PROBATE
NOTICE IS GIVEN that the attached Declaration of
Completion of Probate was filed by the undersigned in the above-entitled court
on the . . . day of . . . . , . . . .; unless you file a petition in the
above-entitled court requesting the court to approve the reasonableness of the
fees, or for an accounting, or both, and serve a copy thereof upon the personal
representative or the personal representative's lawyer, within thirty days
after the date of the filing:
(i) The schedule of fees set forth in the Declaration
of Completion of Probate will be deemed reasonable;
(ii) The Declaration of Completion of Probate will
be final and deemed the equivalent of a Decree of Distribution entered under
chapter 11.76 RCW;
(iii) The acts that the personal representative
performed before the Declaration of Completion of Probate was filed will be
deemed approved, and the personal representative will be automatically
discharged without further order of the court with respect to all such acts;
and
(iv) The personal representative will retain the
power to deal with the taxing authorities, together with
$. . . . for the determination and payment of all remaining tax
obligations. Only that portion of the reserve that remains after the
settlement of any tax liability, and the payment of any expenses associated
with such settlement, will be distributed to the persons legally entitled to
the reserve.
(2)
If the requirements in subsection (1) of this section are met, the personal
representative is discharged from all claims other than those relating to the
settlement of any tax obligations and the actual distribution of the reserve,
at the effective date of the declaration of completion. The personal
representative is discharged from liability from the settlement of any tax obligations
and the distribution of the reserve, and the personal representative's powers
cease, thirty days after the personal representative:
(a)
Has mailed to those persons who would have shared in the distribution of the
reserve had the reserve remained intact; and
(b)
Has filed with the court copies of checks or receipts showing how the reserve
was in fact distributed, unless a person with an interest in the reserve
petitions the court earlier within the thirty-day period for an order requiring
an accounting of the reserve or an order determining the reasonableness, or
lack of reasonableness, of distributions made from the reserve. If the
personal representative has been required to furnish a bond, any bond furnished
by the personal representative is automatically discharged upon the final
discharge of the personal representative.
Sec.
71. RCW
11.76.080 and 1977 ex.s. c 80 s 15 are each amended to read as follows:
If
there be any alleged ((incompetent or disabled)) incapacitated
person as defined in RCW 11.88.010 interested in the estate who has no legally
appointed guardian or limited guardian, the court:
(1)
At any stage of the proceeding in its discretion and for such purpose or
purposes as it shall indicate, may((,)) appoint; and
(2)
For hearings held ((pursuant to RCW 11.52.010, 11.52.020, 11.68.040)) under
sections 48 and 61 of this act, RCW 11.68.100, and 11.76.050((, each as
now or hereafter amended,)) or for entry of an order adjudicating testacy or
intestacy and heirship when no personal representative is appointed to
administer the estate of the decedent, shall appoint some disinterested person
as guardian ad litem to represent ((such)) the allegedly ((incompetent
or disabled)) incapacitated person with reference to any petition,
proceeding report, or adjudication of testacy or intestacy without the
appointment of a personal representative to administer the estate of decedent
in which the alleged ((incompetent or disabled)) incapacitated
person may have an interest, who, on behalf of the alleged ((incompetent or
disabled)) incapacitated person, may contest the same as any other
person interested might contest it, and who shall be allowed by the court
reasonable compensation for his or her services: PROVIDED, HOWEVER,
That where a surviving spouse is the sole beneficiary under the terms of a
will, the court may grant a motion by the personal representative to waive the
appointment of a guardian ad litem for a person who is the minor child of ((such))
the surviving spouse and the decedent and who is ((incompetent)) incapacitated
solely for the reason of his or her being under eighteen years of age.
Sec.
72. RCW
11.76.095 and 1991 c 193 s 28 are each amended to read as follows:
When
a decree of distribution is made by the court in administration upon a
decedent's estate or when distribution is made by a personal representative
under a nonintervention will and distribution is ordered under such decree or
authorized under such nonintervention will to a person under the age of
eighteen years, it shall be required that:
(1)
The money be deposited in a bank or trust company or be invested in an account
in an insured financial institution for the benefit of the minor subject to withdrawal
only upon the order of the court in the original probate proceeding, or upon
said minor's attaining the age of eighteen years and furnishing proof thereof
satisfactory to the depositary;
(2)
A general guardian shall be appointed and qualify and the money or property be
paid or delivered to such guardian prior to the discharge of the personal
representative in the original probate proceeding; or
(3)
((The provisions of RCW 11.76.090 are complied with; or
(4))) A
custodian be selected and the money or property be transferred to the custodian
subject to chapter ((11.93)) 11.114 RCW.
Sec.
73. RCW
11.86.041 and 1991 c 7 s 1 are each amended to read as follows:
(1)
Unless the instrument creating an interest directs to the contrary, the
interest disclaimed shall pass as if the beneficiary had died immediately prior
to the date of the transfer of the interest. The disclaimer shall relate back
to this date for all purposes.
(2)
Unless the ((disclaimer directs to the contrary, the beneficiary may receive
another interest in the property subject to the disclaimer)) beneficiary
is the surviving spouse of a deceased creator of the interest, the beneficiary
shall also be deemed to have disclaimed all interests in the property, including
all beneficial interests in any trust into which the disclaimed property may
pass. This subsection applies unless the disclaimer specifically refers to
this subsection and states to the contrary.
(3)
Any future interest taking effect in possession or enjoyment after termination
of the interest disclaimed takes effect as if the beneficiary had died prior to
the date of the beneficiary's final ascertainment as a beneficiary and the
indefeasible vesting of the interest.
(4)
The disclaimer is binding upon the beneficiary and all persons claiming through
or under the beneficiary.
(5)
Unless the instrument creating the interest directs to the contrary, a
beneficiary whose interest in a devise or bequest under a will has been
disclaimed shall be deemed to have died for purposes of RCW 11.12.110.
(6)
In the case of a disclaimer that results in property passing to a trust over
which the disclaimant has any power to direct the beneficial enjoyment of the
disclaimed property, the disclaimant shall also be deemed to have disclaimed
any power to direct the beneficial enjoyment of the disclaimed property, unless
the power is limited by an ascertainable standard for the health, education,
support, or maintenance of any person as described in section 2041 or 2514 of
the Internal Revenue Code and the applicable regulations adopted under those
sections. This subsection applies unless the disclaimer specifically refers to
this subsection and states to the contrary. This subsection shall not be
deemed to otherwise prevent such a disclaimant from acting as trustee or
executor over disclaimed property.
Sec.
74. RCW
11.95.140 and 1993 c 339 s 11 are each amended to read as follows:
(1)(a)
RCW 11.95.100 and 11.95.110 respectively apply to a power of appointment
created:
(i)
Under a will, codicil, trust agreement, or declaration of trust, deed,
power of attorney, or other instrument executed after July 25, 1993, unless the
terms of the instrument refer specifically to RCW 11.95.100 or 11.95.110
respectively and provide expressly to the contrary; or
(ii)
Under a testamentary trust, trust agreement, or declaration of trust executed
before July 25, 1993, unless:
(A)
The trust is revoked, or amended to provide otherwise, and the terms of any amendment
specifically refer to RCW 11.95.100 or 11.95.110, respectively, and provide
expressly to the contrary;
(B)
All parties in interest, as defined in RCW 11.98.240(3), elect affirmatively,
in the manner prescribed in RCW 11.98.240(4), not to be subject to the
application of this subsection. The election must be made by the later of
September 1, 2000, or three years after the date on which the trust becomes
irrevocable; or
(C)
A person entitled to judicial proceedings for a declaration of rights or legal
relations under RCW 11.96.070 obtains a judicial determination, under chapter
11.96 RCW, that the application of this subsection (1)(a)(ii) to the trust is
inconsistent with the provisions or purposes of the will or trust.
(b)
Notwithstanding (a) of this subsection, for the purposes of this section a
codicil to a will, an amendment to a trust, or an amendment to another
instrument that created the power of appointment in question shall not be
deemed to cause that instrument to be executed after July 25, 1993, unless the
codicil((,)) or amendment((, or other instrument)) clearly
shows an intent to have RCW 11.95.100 or 11.95.110 apply.
(2)
Notwithstanding subsection (1) of this section, RCW 11.95.100 through 11.95.150
shall apply to a power of appointment created under a will, codicil, trust
agreement, or declaration of trust, deed, power of attorney, or other
instrument executed prior to July 25, 1993, if the person who created the power
of appointment had on July 25, 1993, the power to revoke, amend, or modify the
instrument creating the power of appointment, unless:
(a)
The terms of the instrument specifically refer to RCW 11.95.100 or 11.95.110
respectively and provide expressly to the contrary; or
(b)
The person creating the power of appointment was not competent, on July 25,
1993, to revoke, amend, or modify the instrument creating the power of
appointment and did not regain his or her competence to revoke, amend, or
modify the instrument creating the power of appointment on or before his or her
death or before the time at which the instrument could no longer be revoked,
amended, or modified by the person.
Sec.
75. RCW
11.98.070 and 1989 c 40 s 7 are each amended to read as follows:
A
trustee, or the trustees jointly, of a trust, in addition to the authority
otherwise given by law, have discretionary power to acquire, invest, reinvest,
exchange, sell, convey, control, divide, partition, and manage the trust
property in accordance with the standards provided by law, and in so doing may:
(1)
Receive property from any source as additions to the trust or any fund of the
trust to be held and administered under the provisions of the trust;
(2)
Sell on credit;
(3)
Grant, purchase or exercise options;
(4)
Sell or exercise subscriptions to stock or other corporate securities and to
exercise conversion rights;
(5)
Deposit stock or other corporate securities with any protective or other
similar committee;
(6)
Assent to corporate sales, leases, and encumbrances;
(7)
Vote trust securities in person or by proxy with power of substitution; and
enter into voting trusts;
(8)
Register and hold any stocks, securities, or other property in the name of a
nominee or nominees without mention of the trust relationship, provided the
trustee or trustees are liable for any loss occasioned by the acts of any
nominee, except that this subsection shall not apply to situations covered by
RCW 11.98.070(31);
(9)
Grant leases of trust property, with or without options to purchase or renew,
to begin within a reasonable period and for terms within or extending beyond
the duration of the trust, for any purpose including exploration for and removal
of oil, gas and other minerals; enter into community oil leases, pooling and
unitization agreements;
(10)
Subdivide, develop, dedicate to public use, make or obtain the vacation of
public plats, adjust boundaries, partition real property, and on exchange or
partition to adjust differences in valuation by giving or receiving money or
money's worth;
(11)
Compromise or submit claims to arbitration;
(12)
Borrow money, secured or unsecured, from any source, including a corporate
trustee's banking department, or from the individual trustee's own funds;
(13)
Make loans, either secured or unsecured, at such interest as the trustee may
determine to any person, including any beneficiary of a trust, except that no
trustee who is a beneficiary of a trust may participate in decisions regarding
loans to such beneficiary from the trust, unless the loan is as described in
RCW 83.110.020(2), and then only to the extent of the loan, and also except
that if a beneficiary or the grantor of a trust has the power to change a
trustee of the trust, the power to loan shall be limited to loans at a
reasonable rate of interest and for adequate security;
(14)
Determine the hazards to be insured against and maintain insurance for them;
(15)
Select any part of the trust estate in satisfaction of any partition or
distribution, in kind, in money or both; make nonpro rata distributions of
property in kind; allocate particular assets or portions of them or undivided
interests in them to any one or more of the beneficiaries without regard to the
income tax basis of specific property allocated to any beneficiary and without
any obligation to make an equitable adjustment;
(16)
Pay any income or principal distributable to or for the use of any beneficiary,
whether that beneficiary is under legal disability, to the beneficiary or for
the beneficiary's use to the beneficiary's parent, guardian, custodian under
the uniform gifts to minors act of any state, person with whom he resides, or
third person;
(17)
Change the character of or abandon a trust asset or any interest in it;
(18)
Mortgage, pledge the assets or the credit of the trust estate, or otherwise
encumber trust property, including future income, whether an initial
encumbrance or a renewal or extension of it, for a term within or extending
beyond the term of the trust, in connection with the exercise of any power
vested in the trustee;
(19)
Make ordinary or extraordinary repairs or alterations in buildings or other
trust property, demolish any improvements, raze existing structures, and make
any improvements to trust property;
(20)
Create restrictions, easements, including easements to public use without
consideration, and other servitudes;
(21)
Manage any business interest, including any farm or ranch interest, regardless
of form, received by the trustee from the trustor of the trust, as a result of
the death of a person, or by gratuitous transfer from any other transferor, and
with respect to the business interest, have the following powers:
(a)
To hold, retain, and continue to operate that business interest solely at the
risk of the trust, without need to diversify and without liability on the part
of the trustee for any resulting losses;
(b)
To enlarge or diminish the scope or nature or the activities of any business;
(c)
To authorize the participation and contribution by the business to any employee
benefit plan, whether or not qualified as being tax deductible, as may be
desirable from time to time;
(d)
To use the general assets of the trust for the purpose of the business and to
invest additional capital in or make loans to such business;
(e)
To endorse or guarantee on behalf of the trust any loan made to the business
and to secure the loan by the trust's interest in the business or any other
property of the trust;
(f)
To leave to the discretion of the trustee the manner and degree of the
trustee's active participation in the management of the business, and the
trustee is authorized to delegate all or any part of the trustee's power to
supervise, manage, or operate to such persons as the trustee may select,
including any partner, associate, director, officer, or employee of the
business; and also including electing or employing directors, officers, or
employees of the trustee to take part in the management of the business as
directors or officers or otherwise, and to pay that person reasonable
compensation for services without regard to the fees payable to the trustee;
(g)
To engage, compensate, and discharge or to vote for the engaging, compensating,
and discharging of managers, employees, agents, lawyers, accountants,
consultants, or other representatives, including anyone who may be a
beneficiary of the trust or any trustee;
(h)
To cause or agree that surplus be accumulated or that dividends be paid;
(i)
To accept as correct financial or other statements rendered by any accountant
for any sole proprietorship or by any partnership or corporation as to matters
pertaining to the business except upon actual notice to the contrary;
(j)
To treat the business as an entity separate from the trust, and in any
accounting by the trustee it is sufficient if the trustee reports the earning
and condition of the business in a manner conforming to standard business
accounting practice;
(k)
To exercise with respect to the retention, continuance, or disposition of any
such business all the rights and powers that the trustor of the trust would
have if alive at the time of the exercise, including all powers as are
conferred on the trustee by law or as are necessary to enable the trustee to
administer the trust in accordance with the instrument governing the trust,
subject to any limitations provided for in the instrument; and
(l)
To satisfy contractual and tort liabilities arising out of an unincorporated
business, including any partnership, first out of the business and second out
of the estate or trust, but in no event may there be a liability of the
trustee, except as provided in RCW 11.98.110 (2) and (4), and if the trustee is
liable, the trustee is entitled to indemnification from the business and the
trust, respectively;
(22)
Participate in the establishment of, and thereafter in the operation of, any
business or other enterprise according to subsection (21) of this section
except that the trustee shall not be relieved of the duty to diversify;
(23)
Cause or participate in, directly or indirectly, the formation, reorganization,
merger, consolidation, dissolution, or other change in the form of any
corporate or other business undertaking where trust property may be affected
and retain any property received pursuant to the change;
(24)
Limit participation in the management of any partnership and act as a limited
or general partner;
(25)
Charge profits and losses of any business operation, including farm or ranch
operation, to the trust estate as a whole and not to the trustee; make
available to or invest in any business or farm operation additional moneys from
the trust estate or other sources;
(26)
Pay reasonable compensation to the trustee or co-trustees considering all
circumstances including the time, effort, skill, and responsibility involved in
the performance of services by the trustee;
(27)
Employ persons, including lawyers, accountants, investment advisors, or agents,
even if they are associated with the trustee, to advise or assist the trustee
in the performance of the trustee's duties or to perform any act, regardless of
whether the act is discretionary, and to act without independent investigation
upon their recommendations, except that:
(a)
A trustee may not delegate all of the trustee's duties and
responsibilities((, and except that this employment does not relieve the
trustee of liability for the discretionary acts of a person, which if done by
the trustee, would result in liability to the trustee, or of the duty to select
and retain a person with reasonable care));
(b)
This power to employ and to delegate duties does not relieve the trustee of
liability for such person's discretionary acts, that, if done by the trustee,
would result in liability to the trustee;
(c)
This power to employ and to delegate duties does not relieve the trustee of the
duty to select and retain a person with reasonable care;
(d)
The trustee, or a successor trustee, may sue the person to collect any damages
suffered by the trust estate even though the trustee might not be personally
liable for those damages, subject to the statutes of limitation that would have
applied had the claim been one against the trustee who was serving when the act
or failure to act occurred;
(28)
Appoint an ancillary trustee or agent to facilitate management of assets
located in another state or foreign country;
(29)
Retain and store such items of tangible personal property as the trustee
selects and pay reasonable storage charges thereon from the trust estate;
(30)
Issue proxies to any adult beneficiary of a trust for the purpose of voting
stock of a corporation acting as the trustee of the trust;
(31)
Place all or any part of the securities at any time held by the trustee in the
care and custody of any bank, trust company, or member firm of the New York
Stock Exchange with no obligation while the securities are so deposited to
inspect or verify the same and with no responsibility for any loss or
misapplication by the bank, trust company, or firm, so long as the bank, trust
company, or firm was selected and retained with reasonable care, and have all
stocks and registered securities placed in the name of the bank, trust company,
or firm, or in the name of its nominee, and to appoint such bank, trust
company, or firm agent as attorney to collect, receive, receipt for, and
disburse any income, and generally may perform, but is under no requirement to
perform, the duties and services incident to a so-called "custodian"
account;
(32)
Determine at any time that the corpus of any trust is insufficient to implement
the intent of the trust, and upon this determination by the trustee, terminate
the trust by distribution of the trust to the current income beneficiary or
beneficiaries of the trust or their legal representatives, except that this
determination may only be made by the trustee if the trustee is neither the
grantor nor the beneficiary of the trust, and if the trust has no charitable
beneficiary; and
(33)
((Rely with acquittance on advice of counsel on questions of law; and
(34))) Continue to be a party to any existing voting
trust agreement or enter into any new voting trust agreement or renew an existing
voting trust agreement with respect to any assets contained in trust.
Sec.
76. RCW
11.98.240 and 1994 c 221 s 66 are each amended to read as follows:
(1)(a)(((i))) RCW 11.98.200 and 11.98.210 respectively apply
to:
(i)
A trust established under a will, codicil, trust agreement, declaration of
trust, deed, or other instrument executed after July 25, 1993, unless the
instrument's terms refer specifically to RCW 11.98.200 or 11.98.210
respectively and provide expressly to the contrary. However, except for RCW
11.98.200(3), the 1994 c 221 amendments to RCW 11.98.200 apply to a trust
established under a will, codicil, trust agreement, declaration of trust, deed,
or other instrument executed after January 1, 1995, unless the instrument's
terms refer specifically to RCW 11.98.200 and provide expressly to the
contrary.
(ii)
((Notwithstanding (a)(i) of this subsection, for the purposes of this
subsection a codicil to a will or an amendment to a trust does not cause that
instrument to be executed after July 25, 1993, unless the codicil or amendment
clearly shows an intent to have RCW 11.98.200 or 11.98.210 apply.)) A
trust created under a will, codicil, trust agreement, declaration of trust,
deed, or other instrument executed before July 25, 1993, unless:
(A)
The trust is revoked or amended and the terms of the amendment refer
specifically to RCW 11.98.200 and provide expressly to the contrary;
(B)
All parties in interest, as defined in subsection (3) of this section elect
affirmatively, in the manner prescribed in subsection (4) of this section, not
to be subject to the application of this subsection. The election must be made
by the later of September 1, 2000, or three years after the date on which the
trust becomes irrevocable; or
(C)
A person entitled to judicial proceedings for a declaration of rights or legal
relations under RCW 11.96.070 obtains a judicial determination, under chapter
11.96 RCW, that the application of this subsection (1)(a)(ii) to the trust is inconsistent
with the provisions or purposes of the will or trust.
(b)
Notwithstanding (a) of this subsection, RCW 11.98.200 and 11.98.210
respectively apply to a trust established under a will or codicil of a decedent
dying on or after July 25, 1993, and to an inter vivos trust to which the
trustor had on or after July 25, 1993, the power to terminate, revoke, amend,
or modify, unless:
(i)
The terms of the instrument specifically refer to RCW 11.98.200 or 11.98.210
respectively and provide expressly to the contrary; or
(ii)
The decedent or the trustor was not competent, on July 25, 1993, to change the
disposition of his or her property, or to terminate, revoke, amend, or modify
the trust, and did not regain his or her competence to dispose, terminate, revoke,
amend, or modify before the date of the decedent's death or before the trust
could not otherwise be revoked, terminated, amended, or modified by the
decedent or trustor.
(2)
RCW 11.98.200 neither creates a new cause of action nor impairs an existing
cause of action that, in either case, relates to a power proscribed under RCW
11.98.200 that was exercised before July 25, 1993. RCW 11.98.210 neither
creates a new cause of action nor impairs an existing cause of action that, in
either case, relates to a power proscribed, limited, or qualified under RCW
11.98.210.
(3)
For the purpose of subsection (1)(a)(ii) of this section, "parties in
interest" means those persons identified as "required parties to the
dispute" under RCW 11.96.170(6)(b).
(4)
The affirmative election required under subsection (1)(a)(ii)(B) of this
section must be made in the following manner;
(a)
If the trust is revoked or amended, through a revocation of or an amendment to
the trust; or
(b)
Through a nonjudicial dispute resolution agreement described in RCW 11.96.170.
Sec.
77. RCW
11.96.070 and 1994 c 221 s 55 are each amended to read as follows:
(1)
A person with an interest in or right respecting the administration,
settlement, or disposition of an interest in a trust or in the estate of an
incapacitated, missing, or deceased person may have a judicial proceeding for
the declaration of rights or legal relations under this title including but not
limited to the following:
(a)
The ascertaining of any class of creditors, devisees, legatees, heirs, next of
kin, or others;
(b)
The ordering of the personal representatives or trustees to do or abstain from
doing any particular act in their fiduciary capacity;
(c)
The determination of any question arising in the administration of the estate
or trust, including without limitation questions of construction of wills and
other writings;
(d)
The grant to the personal representatives or trustees of any necessary or
desirable powers not otherwise granted in the instrument or given by law that
the court determines are not inconsistent with the provisions or purposes of
the will or trust;
(e)
The modification of the will or the trust instrument in the manner required to
qualify the gift thereunder for the charitable estate tax deduction permitted
by federal law, including the addition of mandatory governing instrument
requirements for a charitable remainder trust as required by final regulations
and rulings of the United States internal revenue service, in any case in which
all parties interested in the trust have submitted written agreements to the
proposed changes or written disclaimer of interest;
(f)
The modification of the will or the trust instrument in the manner required to
qualify any gift thereunder for the benefit of a surviving spouse who is not a
citizen of the United States for the estate tax marital deduction permitted by
federal law, including the addition of mandatory governing instrument
requirements for a qualified domestic trust under section 2056A of the internal
revenue code as required by final regulations and rulings of the United States
treasury department or internal revenue service, in any case in which all
parties interested in the trust have submitted written agreements to the
proposed changes or written disclaimer of interest;
(g)
The determination of the persons entitled to notice under RCW 11.96.100 and
11.96.110 for the purposes of any judicial proceeding under this subsection (1)
and for the purposes of an agreement under RCW 11.96.170; or
(h)
The resolution of any other matter that arises under this title and references
this section.
(2)
Any person with an interest in or right respecting the administration of a
nonprobate asset under this title may have a judicial proceeding for the declaration
of rights or legal relations under this title with respect to the nonprobate
asset, including without limitation the following:
(a)
The ascertaining of any class of creditors or others for purposes of chapter
11.18 or 11.42 RCW;
(b)
The ordering of a qualified person, the notice agent, or resident agent, as
those terms are defined in chapter 11.42 RCW, or any combination of them, to do
or abstain from doing any particular act with respect to a nonprobate asset;
(c)
The ordering of a custodian of any of the decedent's records relating to a
nonprobate asset to do or abstain from doing any particular act with respect to
those records;
(d)
The determination of any question arising in the administration under chapter
11.18 or 11.42 RCW of a nonprobate asset;
(e)
The determination of the persons entitled to notice under RCW 11.96.100 and
11.96.110 for the purposes of any judicial proceeding under this subsection (2)
and for the purposes of an agreement under RCW 11.96.170; and
(f)
The determination of any questions relating to the abatement, rights of
creditors, or other matter relating to the administration, settlement, or final
disposition of a nonprobate asset under this title.
(3)
The provisions of this chapter apply to disputes arising in connection with
estates of incapacitated persons unless otherwise covered by chapters 11.88 and
11.92 RCW. The provisions of this chapter shall not supersede the otherwise
applicable provisions and procedures of chapter 11.24, 11.28, 11.40, ((11.52,))
11.42, 11.56, or 11.60 RCW with respect to any rights or legal
obligations that are subject to those chapters.
(4)
For the purposes of this section, "a person with an interest in or right
respecting the administration, settlement, or disposition of an interest in a
trust or in the estate of an incapacitated, missing, or deceased person"
includes but is not limited to:
(a)
The trustor if living, trustee, beneficiary, or creditor of a trust and, for a
charitable trust, the attorney general if acting within the powers granted
under RCW 11.110.120;
(b)
The personal representative, heir, devisee, legatee, and creditor of an estate;
(c)
The guardian, guardian ad litem, and ward of a guardianship, and a creditor of
an estate subject to a guardianship; and
(d)
Any other person with standing to sue with respect to any of the matters for
which judicial proceedings are authorized in subsection (1) of this section.
(5)
For the purposes of this section, "any person with an interest in or right
respecting the administration of a nonprobate asset under this title"
includes but is not limited to:
(a)
The notice agent, the resident agent, or a qualified person, as those terms are
defined in chapter 11.42 RCW;
(b)
The recipient of the nonprobate asset with respect to any matter arising under
this title;
(c)
Any other person with standing to sue with respect to any matter for which
judicial proceedings are authorized in subsection (2) of this section; and
(d) The legal representatives of any of the persons named in this
subsection.
Sec.
78. RCW
11.104.010 and 1985 c 30 s 84 are each amended to read as follows:
As
used in this chapter:
(1)
"Income beneficiary" means the person to whom income is presently
payable or for whom it is accumulated for distribution as income;
(2)
Except as provided in RCW 11.104.110, "inventory value"
means the cost of property purchased by the trustee and the cost or adjusted
basis for federal income tax purposes of other property at the time it became
subject to the trust, but in the case of a trust asset that is included on any
death tax return the trustee may, but need not, use the value finally
determined for the purposes of the federal estate tax if applicable, otherwise
for another estate or inheritance tax;
(3)
"Remainderman" means the person entitled to principal, including income
which has been accumulated and added to principal.
NEW
SECTION. Sec. 79. A
new section is added to chapter 11.104 RCW to read as follows:
(1)
Notwithstanding any contrary provision of this chapter, if the trust instrument
adopts this section by specific reference, an increase in the value of the
following investments, over the value of the investments at the time of
acquisition by the trust, is distributable as income when it becomes available
for distribution:
(a)
A zero coupon bond;
(b)
An annuity contract before annuitization;
(c)
A life insurance contract before the death of the insured;
(d)
An interest in a common trust fund as defined in section 584 of the Internal
Revenue Code;
(e)
An interest in a partnership as defined in section 7701 of the Internal Revenue
Code; or
(f)
Any other obligation for the payment of money that is payable at a future time
in accordance with a fixed, variable, or discretionary schedule of appreciation
in excess of the price at which it was issued.
(2)
The increase in value of the investments described in subsection (1) of this
section is allocable to the beneficiary who is the beneficiary to whom income
may be distributed at the time when the trustee receives cash on account of the
investment, notwithstanding RCW 11.104.070.
(3)
For purposes of this section, the increase in value of an investment described
in subsection (1) of this section is available for distribution only when the
trustee receives cash on account of the investment.
Sec.
80. RCW
11.104.110 and 1971 c 74 s 11 are each amended to read as follows:
((Except
as provided in RCW 11.104.090 and 11.104.100, if the principal consists of
property subject to depletion, including leaseholds, patents, copyrights,
royalty rights, and rights to receive payments on a contract for deferred
compensation, receipts from the property, not in excess of five percent per
year of its inventory value, are income, and the balance is principal.)) (1)
Subject to subsection (3) of this section, if the principal of a trust includes
a deferred payment right including the right to receive deferred compensation,
the proceeds of the right or the amount of deferred compensation, on receipt,
are income to the extent determinable without reference to this section, or if
not so determinable, are income up to five percent of the inventory value of
the right or amount, determined separately for each year in which the right or
amount is subject to the trust. The remainder of the proceeds or amount is
principal. If not otherwise determinable, the allocation to income is computed
in the same manner in which interest under a loan of the initial inventory
amount would be computed, at five percent interest compounded annually, as if annual
payments were made by the borrower to the lender.
(2)
If income is determined under this section, for the first year, inventory value
is determined as provided by this chapter or by this section for deferred
compensation. For each year after the first year, the inventory value is:
(a)
Reduced to the extent that the proceeds of the right or amount received during
the preceding year were allocated to principal; and
(b)
Increased to the extent that the proceeds received during the preceding year
were less than five percent of the inventory value of that year.
(3)
While the deferred payment right is under administration in a decedent's
estate, income and principal are determined by using the fiscal year of the
estate and ending on the date the trust is funded with the right. After the
administration of the estate, the fiscal year of the trust is used. The five
percent allocation to income is prorated for any year that is less than twelve
months.
(4)
The proceeds of a deferred payment right include all receipts relating to the
right, whether or not the receipts are periodic. After the proceeds are
received by the trustee and allocated in accordance with this section, this
section does not apply to the proceeds except to the extent the proceeds include
a continuing deferred payment right or right to receive deferred compensation.
(5)
In this section:
(a)
"Deferred compensation" means an amount receivable under an
arrangement for the payment of compensation in a year after the year in which
the compensation was earned, whether the obligation to pay is funded or
unfunded and includes the right to payment:
(i)
Of benefits under a nonqualified plan of deferred compensation or similar
arrangement or agreement; or
(ii)
Of benefits under an employee benefit plan as defined in this section;
(b)
"Deferred payment right" means a depletable asset, other than natural
resources governed by RCW 11.104.090 or timber governed by RCW 11.104.100,
consisting of the right to property under a contract, account, or other
arrangement that is payable not earlier than twelve months after the date the
right becomes subject to the trust. A deferred payment right includes the
right to receive a periodic, annuity, installment, or single-sum future
payment:
(i)
Under a leasehold, patent, copyright, or royalty;
(ii)
Of income in respect of a decedent under section 691 of the Internal Revenue
Code of 1986; or
(iii)
Of death benefits;
(c)
"Employee benefit plan" means any of the following, whether funded by
a trust, custodian account, annuity, or retirement bond:
(i)
A plan, individual retirement account, or deferred compensation plan or
arrangement that is described in RCW 49.64.020, section 401(a), 403(a), 403(b),
408, or 457 of the Internal Revenue Code of 1986, as amended, or in section 409
of the Internal Revenue Code in effect before January 1, 1984; or
(ii)
An employee benefit plan established or maintained by:
(A)
The government of the United States;
(B)
The state of Washington;
(C)
A state or territory of the United States;
(D)
The District of Columbia; or
(E)
A political subdivision, agency, or instrumentality of the entities in
(c)(ii)(A) through (D) of this subsection; and
(d)
"Year" means the fiscal year of the estate or trust for federal
income tax purposes.
(6)
The deferred compensation payable consisting of the account balance or accrued
benefit as of the date of death of the owner of such amount receivable or, if
elected, the alternate valuation date for federal estate tax purposes, shall be
the inventory value of the deferred compensation as used in this chapter as of
that date.
Sec.
81. RCW
11.108.010 and 1993 c 73 s 2 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
The term "pecuniary bequest" means a gift in a governing instrument
which either is expressly stated as a fixed dollar amount or is a gift of a
dollar amount determinable by the governing instrument, and a gift expressed in
terms of a "sum" or an "amount," unless the context
dictates otherwise, is a gift of a dollar amount.
(2)
As the context might require, the term "marital deduction"
means either the federal estate tax deduction or the federal gift tax
deduction allowed for transfers to spouses under the Internal Revenue Code.
(3)
The term "maximum marital deduction" means the maximum amount
qualifying for the marital deduction.
(4)
The term "marital deduction gift" means a gift intended to qualify
for the marital deduction as indicated by a preponderance of the evidence
including the governing instrument and extrinsic evidence whether or not the
governing instrument is found to be ambiguous.
(5)
The term "governing instrument" includes ((a)), but is not
limited to: Will and codicils((,)); ((irrevocable, and))
revocable trusts and amendments or addenda to revocable trusts; irrevocable
trusts; beneficiary designations under life insurance policies, annuities,
employee benefit plans, and individual retirement accounts; payable-on-death,
trust, or joint with right of survivorship bank or brokerage accounts; transfer
on death designations or transfer on death or pay on death securities; and
documents exercising powers of appointment.
(6)
The term "fiduciary" means trustee or personal
representative. Reference to a fiduciary in the singular includes the plural
where the context requires.
(7)
The term "gift" refers to all legacies, devises, and bequests made in
a governing instrument.
(8)
The term "transferor" means the testator, grantor, or other person
making a gift.
(9)
The term "spouse" includes the transferor's surviving spouse in the
case of a deceased transferor.
Sec.
82. RCW
11.108.020 and 1993 c 73 s 3 are each amended to read as follows:
(1)
If a governing instrument contains a marital deduction gift, the governing
instrument shall be construed to comply with the marital deduction provisions
of the Internal Revenue Code in every respect.
(2)
If a governing instrument contains a marital deduction gift, ((the governing
instrument, including any power, duty, or discretionary authority given to the
fiduciary, shall be construed to comply with the marital deduction provisions
of the Internal Revenue Code in order to conform to that intent. Whether the
governing instrument contains a marital deduction gift depends upon the intent
of the testator, grantor, or other transferor at the time the governing
instrument is executed. If the testator, grantor, or other transferor has
adequately evidenced an intention to make a marital deduction gift, the
fiduciary shall not take any action or have any power that may impair that
deduction, but this does not require the fiduciary to make the election under
section 2056(b)(7) of the Internal Revenue Code that is referred to in RCW
11.108.025)) any fiduciary operating under the governing instrument has
all the powers, duties, and discretionary authority necessary to comply with
the marital deduction provisions of the Internal Revenue Code. The fiduciary
shall not take any action or have any power that may impair that deduction, but
this does not require the fiduciary to make the elections under either section 2056(b)(7)
or 2523(f) of the Internal Revenue Code that is referred to in RCW 11.108.025.
Sec.
83. RCW
11.108.025 and 1993 c 73 s 4 are each amended to read as follows:
Unless
a governing instrument directs to the contrary:
(1)
The fiduciary shall have the power to make elections, in whole or in part, to
qualify property for the marital deduction as qualified terminable interest
property under section 2056(b)(7) or 2523(f) of the Internal Revenue
Code or, if the surviving spouse is not a citizen of the United States, under
section 2056A of the Internal Revenue Code. Further, the fiduciary shall
have the power to make generation-skipping transfer tax allocations under
section 2632 of the Internal Revenue Code.
(2)
The fiduciary making an election under section 2056(b)(7), 2523(f), or
2056A of the Internal Revenue Code or making an allocation under section 2632
of the Internal Revenue Code may benefit personally from the election or
allocation, with no duty to reimburse any other person interested in the
election or allocation. The fiduciary shall have no duty to make any equitable
adjustment and shall have no duty to treat interested persons impartially in
respect of the election or allocation.
(3)
The fiduciary of a trust, if an election is made under section 2056(b)(7),
2523(f), or 2056A of the Internal Revenue Code, if an allocation is made
under section 2632 of the Internal Revenue Code, or if division of a trust is
of benefit to the persons interested in the trust, may divide the trust into
two or more separate trusts, of equal or unequal value, ((provided that))
if:
(a)
The terms of the separate trusts which result are substantially identical
to the terms of the trust before division((, and provided further,));
(b)
In the case of a trust otherwise qualifying for the marital deduction under
the Internal Revenue Code, ((that)) the division shall not prevent a
separate trust for which the election is made from qualifying for the marital
deduction; and
(c)
The allocation of assets shall be based upon the fair market value of the
assets at the time of the division.
Sec.
84. RCW
11.108.050 and 1993 c 73 s 5 are each amended to read as follows:
(((1)))
If a governing instrument ((indicates the testator's intention to make))
contains a marital deduction gift in trust, then in addition to
the other provisions of this ((section)) chapter, each of the
following ((also)) applies to the trust((; provided, however, that
such provisions shall not apply to any trust which provides for the entire then
remaining trust estate to be paid on the termination of the income interest to
the estate of the spouse of the trust's creator, or to a charitable
beneficiary, contributions to which are tax deductible for federal income tax
purposes:
(a)
The only income beneficiary of a marital deduction trust is the testator's
surviving spouse;
(b)
The income beneficiary is entitled to all of the trust income until the trust
terminates;
(c)
The trust income is payable to the income beneficiary not less frequently than
annually; and
(d)
Except in the case of a marital deduction gift in trust, described in
subsection (2) of this section, or property that has or would otherwise have
qualified for the marital deduction only as the result of an election under
section 2056(b)(7) of the Internal Revenue Code, upon termination of the trust,
all of the remaining trust assets, including accrued or undistributed income,
pass either to the income beneficiary or under the exercise of a general power
of appointment granted to the income beneficiary in favor of the income
beneficiary's estate or to any other person or entity in trust or outright.
The general power of appointment is exercisable by the income beneficiary alone
and in all events.
(2)
If a governing instrument indicates the testator's intention to make a marital
deduction gift in trust and the surviving spouse is not a citizen of the United
States, subsection (1)(a), (b), and (c) of this section and each of the
following shall apply to the trust:
(a)
At least one trustee of the trust shall be an individual citizen of the United
States or a domestic corporation, and no distribution, other than a
distribution of income, may be made from the trust unless a trustee who is an
individual citizen of the United States or a domestic corporation has the right
to withhold from the distribution the tax imposed under section 2056A of the
Internal Revenue Code on the distribution;
(b)
The trust shall meet such requirements as the secretary of the treasury of the
United States may by regulations prescribe to ensure collection of estate tax,
under section 2056A(b) of the Internal Revenue Code; and
(c)
(a) and (b) of this subsection shall no longer apply to the trust if the
surviving spouse becomes a citizen of the United States and (i) the surviving
spouse is a resident of the United States at all times after the testator's
death and before becoming a citizen, or (ii) no tax has been imposed on the
trust under section 2056A(b)(1)(A) of the Internal Revenue Code before the
surviving spouse becomes a citizen, or (iii) the surviving spouse makes an
election under section 2056A(b)(12)(C) of the Internal Revenue Code regarding
tax imposed on distributions from the trust before becoming a citizen.
(3)
The exercise of the general power of appointment provided in this section shall
be done only by the income beneficiary in the manner provided by RCW 11.95.060)) to
the extent necessary to qualify the gift for the marital deduction:
(1)
If the transferor's spouse is a citizen of the United States at the time of the
transfer:
(a)
The transferor's spouse is entitled to all of the income from the trust,
payable annually or at more frequent intervals, during the spouse's life;
(b)
During the life of the transferor's spouse, a person may not appoint or
distribute any part of the trust property to a person other than the
transferor's spouse;
(c)
The transferor's spouse may compel the trustee of the trust to make any
unproductive property of the trust productive, or to convert the unproductive
property into productive property, within a reasonable time; and
(d)
The transferor's spouse may, alone and in all events, dispose of all of the
trust property, including accrued or undistributed income, remaining after the
spouse's death under a testamentary general power of appointment, as defined in
section 2041 of the Internal Revenue Code. However, this subsection (1)(d)
does not apply to: (i) A marital deduction gift in trust which is described in
subsection (2) of this section; (ii) that portion of a marital deduction gift
in trust that has qualified for the marital deduction as a result of an
election under section 2056(b)(7) or 2523(f) of the Internal Revenue Code; and
(iii) that portion of marital deduction gift in trust that would have qualified
for the marital deduction but for the fiduciary's decision not to make the
election under section 2056(b)(7) or 2523(f) of the Internal Revenue Code;
(2)
If the transferor's spouse is not a citizen of the United States at the time of
the transfer, then to the extent necessary to qualify the gift for the marital
deduction, subsection (1)(a), (b), and (c) of this section and each of the
following applies to the trust:
(a)
At least one trustee of the trust must be an individual citizen of the United
States or a domestic corporation, and a distribution, other than a distribution
of income, may not be made from the trust unless a trustee who is an individual
citizen of the United States or a domestic corporation has the right to
withhold from the distribution the tax imposed under section 2056A of the
Internal Revenue Code on the distribution;
(b)
The trust must meet such requirements as the secretary of the treasury of the
United States by regulations prescribes to ensure collection of estate tax,
under section 2056A(b) of the Internal Revenue Code; and
(c)
Subsection (2)(a) and (b) of this section no longer apply to the trust if the
transferor's spouse becomes a citizen of the United States and: (i) The
transferor's spouse was a resident of the United States at all times after the
transferor's death and before becoming a citizen; (ii) tax has not been imposed
on the trust under section 2056A(b)(1)(A) of the Internal Revenue Code before
the transferor's spouse becomes a citizen; or (iii) the transferor's spouse
makes an election under section 2056A(b)(12)(C) of the Internal Revenue Code
regarding tax imposed on distributions from the trust before becoming a
citizen; and
(3)
Subsection (1) of this section does not apply to:
(a)
A trust: (i) That provides for a life estate or term of years for the
exclusive benefit of the transferor's spouse, with the remainder payable to the
such spouse's estate; or (ii) created exclusively for the benefit of the estate
of the transferor's spouse; and
(b)
An interest of the transferor's spouse in a charitable remainder annuity trust
or charitable remainder unitrust described in section 664 of the Internal
Revenue Code, if the transferor's spouse is the only noncharitable beneficiary.
Sec.
85. RCW
11.28.237 and 1994 c 221 s 24 are each amended to read as follows:
(1)
Within twenty days after appointment, the personal representative of the estate
of a decedent shall cause written notice of his or her appointment and the
pendency of said probate proceedings, to be served personally or by mail to
each heir, legatee and devisee of the estate and each beneficiary or transferee
of a nonprobate asset of the decedent whose names and addresses are known to
him or her, and proof of such mailing or service shall be made by affidavit and
filed in the cause.
(2)
If the personal representative does not otherwise give notice to creditors
under chapter 11.40 RCW within thirty days after appointment, the personal
representative shall cause written notice of his or her appointment and the
pendency of the probate proceedings to be mailed to the state of Washington
department of social and health services office of financial recovery, and
proof of the mailing shall be made by affidavit and filed in the cause.
Sec.
86. RCW
11.108.060 and 1989 c 35 s 1 are each amended to read as follows:
((If
a governing instrument contains a marital deduction gift, whether outright or
in trust and whether there is a specific reference to this section, any
survivorship requirement expressed in the governing instrument in excess of six
months, other than survival by a spouse of a common disaster resulting in the
death of the decedent, does not apply to property passing under a marital
deduction gift, and in addition, is limited to a six-month period beginning
with the testator's death.)) For an estate that exceeds the amount exempt
from tax by virtue of the unified credit under section 2010 of the Internal
Revenue Code, if taking into account applicable adjusted taxable gifts as
defined in section 2001(b) of the Internal Revenue Code, any marital deduction
gift that is conditioned upon the transferor's spouse surviving the transferor
for a period of more than six months, is governed by the following:
(1)
A survivorship requirement expressed in the governing instrument in excess of
six months, other than survival by a spouse of a common disaster resulting in
the death of the transferor, does not apply to property passing under the
marital deduction gift, and for the gift, the survivorship requirement is
limited to a six-month period beginning with the transferor's death.
(2)
The property that is the subject of the marital deduction gift must be held in
a trust meeting the requirements of section 2056(b)(7) of the Internal Revenue
Code the corpus of which must: (a) Pass as though the spouse failed to survive
the transferor if the spouse, in fact, fails to survive the term specified in
the governing instrument; and (b) pass to the spouse under the terms of the
governing instrument if the spouse, in fact, survives the term specified in the
governing instrument.
NEW
SECTION. Sec. 87. The
following acts or parts of acts are each repealed:
(1) RCW
11.40.011 and 1989 c 333 s 2, 1983 c 201 s 1, & 1967 ex.s. c
106 s 3;
(2) RCW
11.40.012 and 1989 c 333 s 3;
(3) RCW
11.40.013 and 1994 c 221 s 26 & 1989 c 333 s 4;
(4) RCW
11.40.014 and 1989 c 333 s 5;
(5) RCW
11.40.015 and 1994 c 221 s 27 & 1989 c 333 s 6;
(6) RCW
11.42.160 and 1994 c 221 s 46;
(7) RCW
11.42.170 and 1994 c 221 s 47;
(8) RCW
11.42.180 and 1994 c 221 s 48;
(9) RCW
11.44.066 and 1990 c 180 s 1 & 1974 ex.s. c 117 s 49;
(10) RCW
11.52.010 and 1987 c 442 s 1116, 1984 c 260 s 17, 1974 ex.s. c
117 s 7, 1971 ex.s. c 12 s 2, 1967 c 168 s 12, & 1965 c 145 s 11.52.010;
(11) RCW
11.52.012 and 1985 c 194 s 1, 1984 c 260 s 18, 1977 ex.s. c 234 s
9, 1974 ex.s. c 117 s 8, & 1965 c 145 s 11.52.012;
(12) RCW
11.52.014 and 1965 c 145 s 11.52.014;
(13) RCW
11.52.016 and 1988 c 202 s 18, 1972 ex.s. c 80 s 1, & 1965 c
145 s 11.52.016;
(14) RCW
11.52.020 and 1985 c 194 s 2, 1984 c 260 s 19, 1974 ex.s. c 117 s
9, 1971 ex.s. c 12 s 3, 1967 c 168 s 13, & 1965 c 145 s 11.52.020;
(15) RCW
11.52.022 and 1985 c 194 s 3, 1984 c 260 s 20, 1977 ex.s. c 234 s
10, 1974 ex.s. c 117 s 10, 1971 ex.s. c 12 s 4, & 1965 c 145 s 11.52.022;
(16) RCW
11.52.024 and 1972 ex.s. c 80 s 2 & 1965 c 145 s 11.52.024;
(17) RCW
11.52.030 and 1965 c 145 s 11.52.030;
(18) RCW
11.52.040 and 1965 c 145 s 11.52.040;
(19) RCW
11.52.050 and 1967 c 168 s 14;
(20) RCW
11.68.010 and 1994 c 221 s 50, 1977 ex.s. c 234 s 18, 1974 ex.s.
c 117 s 13, 1969 c 19 s 1, & 1965 c 145 s 11.68.010;
(21) RCW
11.68.020 and 1974 ex.s. c 117 s 14 & 1965 c 145 s 11.68.020;
(22) RCW
11.68.030 and 1977 ex.s. c 234 s 19, 1974 ex.s. c 117 s 15, &
1965 c 145 s 11.68.030; and
(23) RCW
11.68.040 and 1977 ex.s. c 234 s 20, 1974 ex.s. c 117 s 16, &
1965 c 145 s 11.68.040.
NEW
SECTION. Sec. 88. Sections
48 through 57 of this act constitute a new chapter in Title 11 RCW.
NEW
SECTION. Sec. 89.
Sections 1 through 73 of this act apply to estates of decedents dying after
December 31, 1997.
