AN
ACT Relating to trust and estate dispute resolution; amending RCW 11.40.020,
4.16.370, 6.15.020, 11.12.120, 11.18.200, 11.28.240, 11.40.040, 11.40.140,
11.42.010, 11.42.040, 11.42.085, 11.54.080, 11.54.090, 11.68.065, 11.68.080,
11.92.140, 11.95.140, 11.98.039, 11.98.051, 11.98.055, 11.98.080, 11.98.110,
11.98.170, 11.98.200, 11.98.220, 11.98.240, 11.106.040, 11.106.050, 11.106.060,
11.108.040, 11.108.900, 11.110.120, 11.114.020, 36.18.012, 36.18.020, and
83.100.180; adding a new chapter to Title 11 RCW; creating new sections;
repealing RCW 11.16.060, 11.16.070, 11.16.082, 11.16.083, 11.96.009, 11.96.020,
11.96.030, 11.96.040, 11.96.050, 11.96.060, 11.96.070, 11.96.080, 11.96.090,
11.96.100, 11.96.110, 11.96.120, 11.96.130, 11.96.140, 11.96.150, 11.96.160,
11.96.170, 11.96.180, 11.96.900, and 11.96.901; and providing an effective
date.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
PART
I
GENERAL
PROVISIONS
NEW
SECTION. Sec. 1. SHORT
TITLE. This chapter may be known and cited as the trust and
estate dispute resolution act or "TEDRA."
NEW
SECTION. Sec. 2.
PURPOSE. The overall purpose of this chapter is to set forth generally
applicable statutory provisions for the resolution of disputes and other
matters involving trusts and estates in a single chapter under Title 11 RCW.
The provisions are intended to provide nonjudicial methods for the resolution
of matters, such as mediation, arbitration, and agreement. The chapter also
provides for judicial resolution of disputes if other methods are unsuccessful.
NEW
SECTION. Sec. 3.
GENERAL POWER OF COURTS‑-LEGISLATIVE INTENT‑-PLENARY POWER OF THE
COURT. (1) It is the intent of the legislature that the courts shall have full
and ample power and authority under this title to administer and settle:
(a)
All matters concerning the estates and assets of incapacitated, missing, and
deceased persons, including matters involving nonprobate assets and powers of
attorney, in accordance with this title; and
(b)
All trusts and trust matters.
(2)
If this title should in any case or under any circumstance be inapplicable,
insufficient, or doubtful with reference to the administration and settlement
of the matters listed in subsection (1) of this section, the court nevertheless
has full power and authority to proceed with such administration and settlement
in any manner and way that to the court seems right and proper, all to the end
that the matters be expeditiously administered and settled by the court.
NEW
SECTION. Sec. 4.
DEFINITIONS. The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1)
"Matter" includes any issue, question, or dispute involving:
(a)
The determination of any class of creditors, devisees, legatees, heirs, next of
kin, or other persons interested in an estate, trust, nonprobate asset, or with
respect to any other asset or property interest passing at death;
(b)
The direction of a personal representative or trustee to do or to abstain from
doing any act in a fiduciary capacity;
(c)
The determination of any question arising in the administration of an estate or
trust, or with respect to any nonprobate asset, or with respect to any other
asset or property interest passing at death, that may include, without
limitation, questions relating to: (i) The construction of wills, trusts,
community property agreements, and other writings; (ii) a change of personal
representative or trustee; (iii) a change of the situs of a trust; (iv) an
accounting from a personal representative or trustee; or (v) the determination
of fees for a personal representative or trustee;
(d)
The grant to a personal representative or trustee of any necessary or desirable
power not otherwise granted in the governing instrument or given by law;
(e)
The amendment, reformation, or conformation of a will or a trust instrument to
comply with statutes and regulations of the United States internal revenue
service in order to achieve qualification for deductions, elections, and other
tax requirements, including the qualification of 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, or the qualification of any
gift for the charitable estate tax deduction permitted by federal law,
including the addition of mandatory governing instrument requirements for a
charitable remainder trust; and
(f)
With respect to any nonprobate asset, or with respect to any other asset or
property interest passing at death, including joint tenancy property, property
subject to a community property agreement, or assets subject to a pay on death
or transfer on death designation:
(i)
The ascertaining of any class of creditors or others for purposes of chapter
11.18 or 11.42 RCW;
(ii)
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;
(iii)
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;
(iv)
The determination of any question arising in the administration under chapter
11.18 or 11.42 RCW of a nonprobate asset;
(v)
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;
(vi)
The resolution of any matter referencing this chapter, including a
determination of any questions relating to the ownership or distribution of an
individual retirement account on the death of the spouse of the account holder
as contemplated by RCW 6.15.020(6);
(vii)
The resolution of any other matter that could affect the nonprobate asset.
(2)
"Notice agent" has the meanings given in RCW 11.42.010.
(3)
"Nonprobate assets" has the meaning given in RCW 11.02.005.
(4)
"Party" or "parties" means each of the following persons
who has an interest in the subject of the particular proceeding and whose name
and address are known to, or are reasonably ascertainable by, the petitioner:
(a)
The trustor if living;
(b)
The trustee;
(c)
The personal representative;
(d)
An heir;
(e)
A beneficiary, including devisees, legatees, and trust beneficiaries;
(f)
The surviving spouse of a decedent with respect to his or her interest in the
decedent's property;
(g)
A guardian ad litem;
(h)
A creditor;
(i)
Any other person who has an interest in the subject of the particular
proceeding;
(j)
The attorney general if required under RCW 11.110.120;
(k)
Any duly appointed and acting legal representative of a party such as a
guardian, special representative, or attorney in fact;
(l)
Where applicable, the virtual representative of any person described in this
subsection the giving of notice to whom would meet notice requirements as
provided in section 305 of this act;
(m)
Any notice agent, resident agent, or a qualified person, as those terms are
defined in chapter 11.42 RCW; and
(n)
The owner or the personal representative of the estate of the deceased owner of
the nonprobate asset that is the subject of the particular proceeding, if the
subject of the particular proceeding relates to the beneficiary's liability to
a decedent's estate or creditors under RCW 11.18.200.
(5)
"Persons interested in the estate or trust" means the trustor, if
living, all persons beneficially interested in the estate or trust, persons
holding powers over the trust or estate assets, the attorney general in the
case of any charitable trust where the attorney general would be a necessary
party to judicial proceedings concerning the trust, and any personal
representative or trustee of the estate or trust.
(6)
"Principal place of administration of the trust" means the trustee's
usual place of business where the day-to-day records pertaining to the trust
are kept, or the trustee's residence if the trustee has no such place of
business.
(7)
The "situs" of a trust means the place where the principal place of
administration of the trust is located, unless otherwise provided in the instrument
creating the trust.
(8)
"Trustee" means any acting and qualified trustee of the trust.
(9)
"Representative" and other similar terms refer to a person who
virtually represents another under section 305 of this act.
PART
II
JURISDICTION,
VENUE, SITUS, LIMITATIONS
NEW
SECTION. Sec. 201.
ORIGINAL JURISDICTION IN PROBATE AND TRUST MATTERS‑-POWERS OF COURT. (1)
The superior court of every county has original subject matter jurisdiction
over the probate of wills and the administration of estates of incapacitated,
missing, and deceased individuals in all instances, including without
limitation:
(a)
When a resident of the state dies;
(b)
When a nonresident of the state dies in the state; or
(c)
When a nonresident of the state dies outside the state.
(2)
The superior court of every county has original subject matter jurisdiction
over trusts and all matters relating to trusts.
(3)
The superior courts may: Probate or refuse to probate wills, appoint personal
representatives, administer and settle the affairs and the estates of
incapacitated, missing, or deceased individuals including but not limited to
decedents' nonprobate assets; administer and settle matters that relate to
nonprobate assets and arise under chapter 11.18 or 11.42 RCW; administer and
settle all matters relating to trusts; award processes and cause to come before
them all persons whom the courts deem it necessary to examine; order and cause
to be issued all such writs and any other orders as are proper or necessary;
and do all other things proper or incident to the exercise of jurisdiction
under this section.
(4)
The subject matter jurisdiction of the superior court applies without regard to
venue. A proceeding or action by or before a superior court is not defective
or invalid because of the selected venue if the court has jurisdiction of the
subject matter of the action.
NEW
SECTION. Sec. 202. VENUE
IN PROCEEDINGS INVOLVING PROBATE OR TRUST MATTERS. (1) Venue for proceedings
pertaining to trusts shall be:
(a)
For testamentary trusts established under wills probated in the state of
Washington, in the superior court of the county where letters testamentary were
granted to a personal representative of the estate subject to the will or, in
the alternative, the superior court of the county of the situs of the trust;
and
(b)
For all other trusts, in the superior court of the county in which the situs of
the trust is located, or, if the situs is not located in the state of
Washington, in any county.
(2)
Venue for proceedings subject to chapter 11.88 or 11.92 RCW shall be determined
under the provisions of those chapters.
(3)
Venue for proceedings pertaining to the probate of wills, the administration
and disposition of a decedent's property, including nonprobate assets, and any
other matter not identified in subsection (1) or (2) of this section, may be in
any county in the state of Washington. A party to a proceeding may request
that venue be changed if the request is made within four months of the mailing
of the notice of appointment and pendency of probate required by RCW 11.28.237,
and except for good cause shown, venue must be moved as follows:
(a)
If the decedent was a resident of the state of Washington at the time of death,
to the county of the decedent's residence; or
(b)
If the decedent was not a resident of the state of Washington at the time of
death, to any of the following:
(i)
Any county in which any part of the probate estate might be;
(ii)
If there are no probate assets, any county where any nonprobate asset might be;
or
(iii)
The county in which the decedent died.
(4)
Once letters testamentary or of administration have been granted in the state
of Washington, all orders, settlements, trials, and other proceedings under
this title shall be had or made in the county in which such letters have been
granted unless venue is moved as provided in subsection (2) of this section.
(5)
If venue is moved, an action taken before venue is changed is not invalid
because of the venue.
(6)
Any request to change venue that is made more than four months after the
commencement of the action may be granted in the discretion of the court.
NEW
SECTION. Sec. 203.
EXERCISE OF POWERS‑-ORDERS, WRITS, PROCESS, ETC. The court may make,
issue, and cause to be filed or served, any and all manner and kinds of orders,
judgments, citations, notices, summons, and other writs and processes that
might be considered proper or necessary in the exercise of the jurisdiction or
powers given or intended to be given by this title.
NEW
SECTION. Sec. 204.
STATUTES OF LIMITATION. (1)(a) An action against the trustee of an express
trust for a breach of fiduciary duty must be brought within three years from
the earlier of: (i) The time the alleged breach was discovered or reasonably
should have been discovered; (ii) the discharge of a trustee from the trust as
provided in RCW 11.98.041 or by agreement of the parties under section 402 of
this act; or (iii) the time of termination of the trust or the trustee's
repudiation of the trust.
(b)
The provisions of (a) of this subsection apply to all express trusts, no matter
when created, however it shall not apply to express trusts created before June
10, 1959, until the date that is three years after the effective date of this
act.
(c)
For purposes of this section, "express trust" does not include
resulting trusts, constructive trusts, business trusts in which certificates of
beneficial interest are issued to the beneficiary, investment trusts, voting
trusts, trusts in the nature of mortgages or pledges, trusts created by the judgment
or decree of a court not sitting in probate, liquidation trusts, or trusts for
the sole purpose of paying dividends, interest, interest coupons, salaries,
wages, pensions, or profits, trusts created in deposits in any financial
institution under chapter 30.22 RCW, unless any such trust that is created in
writing specifically incorporates this chapter in whole or in part.
(2)
Except as provided in section 405 of this act with respect to special
representatives, an action against a personal representative for alleged breach
of fiduciary duty by an heir, legatee, or other interested party must be
brought before discharge of the personal representative.
(3)
The legislature hereby confirms the long standing public policy of promoting
the prompt and efficient resolution of matters involving trusts and estates.
To further implement this policy, the legislature adopts the following
statutory provisions in order to: (a) Encourage and facilitate the
participation of qualified individuals as special representatives; (b) serve
the public's interest in having a prompt and efficient resolution of matters
involving trusts or estates; and (c) promote complete and final resolution of
proceedings involving trusts and estates.
(i)
Actions against a special representative must be brought before the earlier of:
(A)
Three years from the discharge of the special representative as provided in
section 405 of this act; or
(B)
The entry of an order by a court of competent jurisdiction under section 404 of
this act approving the written agreement executed by all interested parties in
accord with the provisions of section 402 of this act.
(ii)
If a legal action is commenced against the special representative after the
expiration of the period during which claims may be brought against the special
representative as provided in (c)(i) of this subsection, alleging property
damage, property loss, or other civil liability caused by or resulting from an
alleged act or omission of the special representative arising out of or by
reason of the special representative's duties or actions as special
representative, the special representative shall be indemnified: (A) From the
assets held in the trust or comprising the estate involved in the dispute; and
(B) by the persons bringing the legal action, for all expenses, attorneys'
fees, judgments, settlements, decrees, or amounts due and owing or paid in
satisfaction of or incurred in the defense of the legal action. To the extent
possible, indemnification must be made first by the persons bringing the legal
action, second from that portion of the trust or estate that is held for the
benefit of, or has been distributed or applied to, the persons bringing the
legal action, and third from the other assets held in the trust or comprising
the estate involved in the dispute.
(4)
The tolling provisions of RCW 4.16.190 apply to this chapter except that the
running of a statute of limitations under subsection (1) or (2) of this
section, or any other applicable statute of limitations for any matter that is
the subject of dispute under this chapter, is not tolled as to an individual
who had a guardian ad litem, limited or general guardian of the estate, or a
special representative to represent the person during the probate or dispute
resolution proceeding.
PART
III
JUDICIAL
DISPUTE RESOLUTION
NEW
SECTION. Sec. 301.
PERSONS ENTITLED TO JUDICIAL PROCEEDINGS FOR DECLARATION OF RIGHTS OR LEGAL
RELATIONS. (1) Subject to the provisions of sections 501 through 507 of this
act, any party may have a judicial proceeding for the declaration of rights or
legal relations with respect to any matter, as defined by section 104 of this
act; the resolution of any other case or controversy that arises under the
Revised Code of Washington and references judicial proceedings under this
title; or the determination of the persons entitled to notice under section 304
or 305 of this act.
(2)
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, but shall
supplement, any otherwise applicable provisions and procedures contained in
this title, including without limitation those contained in chapter 11.20,
11.24, 11.28, 11.40, 11.42, or 11.56 RCW. The provisions of this chapter shall
not apply to actions for wrongful death under chapter 4.20 RCW.
NEW
SECTION. Sec. 302.
JUDICIAL PROCEEDINGS. (1) A judicial proceeding under this title is a special
proceeding under the civil rules of court. The provisions of this title
governing such actions control over any inconsistent provision of the civil
rules.
(2)
A judicial proceeding under this title may be commenced as a new action or as
an action incidental to an existing judicial proceeding relating to the same
trust or estate or nonprobate asset.
(3)
Once commenced, the action may be consolidated with an existing proceeding or
converted to a separate action upon the motion of a party for good cause shown,
or by the court on its own motion.
(4)
The procedural rules of court apply to judicial proceedings under this title
only to the extent that they are consistent with this title, unless otherwise
provided by statute or ordered by the court under section 103 or 202 of this
act, or other applicable rules of court.
NEW
SECTION. Sec. 303.
PROCEDURAL RULES. Unless rules of court or this title requires otherwise, or
unless a court orders otherwise:
(1)
A judicial proceeding under section 302 of this act is to be commenced by
filing a petition with the court;
(2)
A summons must be served in accordance with this chapter and, where not
inconsistent with these rules, the procedural rules of court;
(3)
The summons need only contain the following language or substantially similar
language:
SUPERIOR COURT OF WASHINGTON
FOR (. . .) COUNTY
IN RE . . . . . . )
) No. . . .
) Summons
)
TO THE
RESPONDENT OR OTHER INTERESTED PARTY: A petition has been filed in the
superior court of Washington for (. . .) County. Petitioner's claim
is stated in the petition, a copy of which is served upon you with this
summons.
In
order to defend against or to object to the petition, you must answer the
petition by stating your defense or objections in writing, and by serving your
answer upon the person signing this summons not later than five days before the
date of the hearing on the petition. Your failure to answer within this time
limit might result in a default judgment being entered against you without
further notice. A default judgment grants the petitioner all that the
petitioner seeks under the petition because you have not filed an answer.
If you
wish to seek the advice of a lawyer, you should do so promptly so that your
written answer, if any, may be served on time.
This
summons is issued under section 303(3) of this act.
(Signed)
. . . . . . . . . . . .
Print or Type Name
Dated: . . . . . .
Telephone
Number: . . . . . .
(4)
Subject to other applicable statutes and court rules, the clerk of each of the
superior courts shall fix the time for any hearing on a matter on application
by a party, and no order of the court shall be required to fix the time or to
approve the form or content of the notice of a hearing;
(5)
The answer to the petition and any counterclaims or cross-claims must be served
on the parties or the parties' virtual representatives and filed with the court
at least five days before the date of the hearing, and all replies to the
counterclaims and cross-claims must be served on the parties or the parties'
virtual representatives and filed with the court at least two days before the
date of the hearing;
(6)
Proceedings under this chapter are subject to the mediation and arbitration
provisions of this chapter. Except as specifically provided in section 506 of
this act, the provisions of chapter 7.06 RCW do not apply;
(7)
Testimony of witnesses may be by affidavit;
(8)
Unless requested otherwise by a party in a petition or answer, the initial
hearing must be a hearing on the merits to resolve all issues of fact and all
issues of law;
(9)
Any party may move the court for an order relating to a procedural matter, including
discovery, and for summary judgment, in the original petition, answer,
response, or reply, or in a separate motion, or at any other time; and
(10)
If the initial hearing is not a hearing on the merits or does not result in a
resolution of all issues of fact and all issues of law, the court may enter any
order it deems appropriate, which order may (a) resolve such issues as it deems
proper, (b) determine the scope of discovery, and (c) set a schedule for
further proceedings for the prompt resolution of the matter.
NEW
SECTION. Sec. 304.
NOTICE IN JUDICIAL PROCEEDINGS UNDER THIS TITLE REQUIRING NOTICE. (1) Subject
to section 309 of this act, in all judicial proceedings under this title that
require notice, the notice must be personally served on or mailed to all
parties or the parties' virtual representatives at least twenty days before the
hearing on the petition unless a different period is provided by statute or
ordered by the court. The date of service shall be determined under the rules
of civil procedure.
(2)
Proof of the service or mailing required in this section must be made by
affidavit or declaration filed at or before the hearing.
NEW
SECTION. Sec. 305.
APPLICATION OF THE DOCTRINE OF VIRTUAL REPRESENTATION. (1) This section is
intended to adopt the common law concept of virtual representation. This
section supplements the common law relating to the doctrine of virtual
representation and shall not be construed as limiting the application of that
common law doctrine.
(2)
Any notice requirement in this title is satisfied if notice is given as
follows:
(a)
Where an interest in an estate, trust, or nonprobate asset has been given to
persons who comprise a certain class upon the happening of a certain event,
notice may be given to the living persons who would constitute the class if the
event had happened immediately before the commencement of the proceeding
requiring notice, and the persons shall virtually represent all other members
of the class;
(b)
Where an interest in an estate, trust, or nonprobate asset has been given to a
living person, and the same interest, or a share in it, is to pass to the
surviving spouse or to persons who are, or might be, the distributees, heirs,
issue, or other kindred of that living person upon the happening of a future
event, notice may be given to that living person, and the living person shall
virtually represent the surviving spouse, distributees, heirs, issue, or other
kindred of the person; and
(c)
Except as otherwise provided in this subsection, where an interest in an
estate, trust, or nonprobate asset has been given to a person or a class of
persons, or both, upon the happening of any future event, and the same interest
or a share of the interest is to pass to another person or class of persons, or
both, upon the happening of an additional future event, notice may be given to
the living person or persons who would take the interest upon the happening of
the first event, and the living person or persons shall virtually represent the
persons and classes of persons who might take on the happening of the
additional future event.
(3)
A party is not virtually represented by a person receiving notice if a conflict
of interest involving the matter is known to exist between the notified person
and the party.
(4)
An action taken by the court is conclusive and binding upon each person
receiving actual or constructive notice or who is otherwise virtually
represented.
NEW
SECTION. Sec. 306.
SPECIAL NOTICE. Nothing in this chapter eliminates the requirement to give
notice to a person who has requested special notice under RCW 11.28.240 or
11.92.150.
NEW
SECTION. Sec. 307.
WAIVER OF NOTICE. Notwithstanding any other provision of this title, notice of
a hearing does not need to be given to a legally competent person who has
waived in writing notice of the hearing in person or by attorney, or who has
appeared at the hearing without objecting to the lack of proper notice or
personal jurisdiction. The waiver of notice may apply either to a specific
hearing or to any and all hearings and proceedings to be held, in which event
the waiver of notice is of continuing effect unless subsequently revoked by the
filing of a written notice of revocation of the waiver and the mailing of a
copy of the notice of revocation of the waiver to the other parties. Unless
notice of a hearing is required to be given by publication, if all persons
entitled to notice of the hearing waive the notice or appear at the hearing
without objecting to the lack of proper notice or personal jurisdiction, the
court may hear the matter immediately. A guardian of the estate or a guardian
ad litem may make the waivers on behalf of the incapacitated person, and a
trustee may make the waivers on behalf of any competent or incapacitated
beneficiary of the trust. A consul or other representative of a foreign
government, whose appearance has been entered as provided by law on behalf of
any person residing in a foreign country, may make the waiver of notice on
behalf of the person.
NEW
SECTION. Sec. 308. COST‑-ATTORNEYS'
FEES. (1) Either the superior court or the court on appeal may, in its
discretion, order costs, including reasonable attorneys' fees, to be awarded to
any party: (a) From any party to the proceedings; (b) from the assets of the
estate or trust involved in the proceedings; or (c) from any nonprobate asset
that is the subject of the proceedings. The court may order the costs to be
paid in such amount and in such manner as the court determines to be equitable.
(2)
This section applies to all proceedings governed by this title, including but
not limited to proceedings involving trusts, decedent's estates and properties,
and guardianship matters. This section shall not be construed as being limited
by any other specific statutory provision providing for the payment of costs,
including RCW 11.68.070 and 11.24.050, unless such statute specifically provides
otherwise. This statute shall apply to matters involving guardians and
guardians ad litem and shall not be limited or controlled by the provisions of
RCW 11.88.090(9).
NEW
SECTION. Sec. 309.
APPOINTMENT OF GUARDIAN AD LITEM. (1) The court, upon its own motion or upon
request of one or more of the parties, at any stage of a judicial proceeding or
at any time in a nonjudicial resolution procedure, may appoint a guardian ad
litem to represent the interests of a minor, incapacitated, unborn, or
unascertained person, person whose identity or address is unknown, or a
designated class of persons who are not ascertained or are not in being. If
not precluded by a conflict of interest, a guardian ad litem may be appointed
to represent several persons or interests.
(2)
The court-appointed guardian ad litem supersedes the special representative if
so provided in the court order.
(3)
The court may appoint the guardian ad litem at an ex parte hearing, or the
court may order a hearing as provided in section 302 of this act with notice as
provided in this section and section 304 of this act.
(4)
The guardian ad litem is entitled to reasonable compensation for services.
Such compensation is to be paid from the principal of the estate or trust whose
beneficiaries are represented.
NEW
SECTION. Sec. 310. TRIAL
BY JURY. If a party is entitled to a trial by jury and a jury is demanded, and
the issues are not sufficiently made up by the written pleadings on file, the
court, on due notice, shall settle and frame the issues to be tried. If a jury
is not demanded, the court shall try the issues, and sign and file its findings
and decision in writing, as provided for in civil actions.
NEW
SECTION. Sec. 311.
EXECUTION ON JUDGMENTS. Judgment on the issues, as well as for costs, may be
entered and enforced by execution or otherwise by the court as in civil
actions.
NEW
SECTION. Sec. 312.
EXECUTION UPON TRUST INCOME OR VESTED REMAINDER‑-PERMITTED, WHEN.
Nothing in RCW 6.32.250 shall forbid execution upon the income of any trust
created by a person other than the judgment debtor for debt arising through the
furnishing of the necessities of life to the beneficiary of such trust; or as
to such income forbid the enforcement of any order of the superior court
requiring the payment of support for the children under the age of eighteen of
any beneficiary; or forbid the enforcement of any order of the superior court
subjecting the vested remainder of any such trust upon its expiration to
execution for the debts of the remainderman.
NEW
SECTION. Sec. 313.
APPELLATE REVIEW. An interested party may seek appellate review of a final
order, judgment, or decree of the court respecting a judicial proceeding under
this title. The review must be done in the manner and way provided by law for
appeals in civil actions.
PART
IV
NONJUDICIAL
BINDING AGREEMENTS
NEW
SECTION. Sec. 401.
PURPOSE. The purpose of sections 402 through 405 of this act is to provide a
binding nonjudicial procedure to resolve matters through written agreements
among the parties interested in the estate or trust. The procedure is supplemental
to, and may not derogate from, any other proceeding or provision authorized by
statute or the common law.
NEW
SECTION. Sec. 402.
BINDING AGREEMENT. Sections 401 through 405 of this act shall be applicable to
the resolution of any matter, as defined by section 104 of this act, other than
matters subject to chapter 11.88 or 11.92 RCW, or a trust for a minor or other
incapacitated person created at its inception by the judgment or decree of a
court unless the judgment or decree provides that sections 401 through 405 of
this act shall be applicable. If all parties agree to a resolution of any such
matter, then the agreement shall be evidenced by a written agreement signed by
all parties. Subject to the provisions of section 404 of this act, the written
agreement shall be binding and conclusive on all persons interested in the
estate or trust. The agreement shall identify the subject matter of the
dispute and the parties. If the agreement or a memorandum of the agreement is
to be filed with the court under section 403 of this act, the agreement may,
but need not, include provisions specifically addressing jurisdiction,
governing law, the waiver of notice of the filing as provided in section 403 of
this act, and the discharge of any special representative who has acted with
respect to the agreement.
If
a party who virtually represents another under section 305 of this act signs
the agreement, then the party's signature constitutes the signature of all
persons whom the party virtually represents, and all the virtually represented
persons shall be bound by the agreement.
NEW
SECTION. Sec. 403. ENTRY
OF AGREEMENT WITH THE COURT‑-EFFECT. (1) If a special representative has
not commenced a proceeding for approval of the agreement under section 404 of
this act, any party, or a party's legal representative, may file the written
agreement or a memorandum summarizing the written agreement with the court
having jurisdiction over the estate or trust. However, the agreement or a
memorandum of its terms may not be filed within thirty days of the agreement's
execution by all parties without the written consent of the special
representative. The person filing the agreement or memorandum shall within
five days of the filing mail or deliver a copy of the agreement and a notice of
the filing to each party whose address is known. Proof of mailing or delivery
of the notice must be filed with the court. Failure to complete any action
authorized or required under this subsection does not cause the written
agreement to be ineffective and the agreement is nonetheless binding and
conclusive on all persons interested in the estate or trust. Notice must be in
substantially the following form.
CAPTION NOTICE OF FILING OF
OF CASE AGREEMENT OR MEMORANDUM
OF
AGREEMENT
Notice
is hereby given that the attached document or a memorandum summarizing its
provisions was filed by the undersigned in the above entitled court on
. . .
DATED: . . . . .
. . . . . . . . . . . . . .
(Party
or party's legal representative)
(2)
On filing the agreement or memorandum, the agreement will be deemed approved by
the court and is equivalent to a final court order binding on all persons
interested in the estate or trust.
(3)
If all parties or their virtual representatives waive the notice required by
this section, the agreement will be deemed approved by the court and is
equivalent to a final court order binding on all persons interested in the
estate or trust effective upon the date of filing.
NEW
SECTION. Sec. 404.
JUDICIAL APPROVAL OF AGREEMENT. Within thirty days of execution of the
agreement by all parties, the special representative may note a hearing for
presentation of the written agreement to a court of competent jurisdiction.
The special representative shall provide notice of the time and date of the
hearing to each party to the agreement whose address is known, unless such
notice has been waived. Proof of mailing or delivery of the notice must be
filed with the court. At such hearing the court shall review the agreement on
behalf of the parties represented by the special representative. The court
shall determine whether or not the interests of the represented parties have
been adequately represented and protected, and an order declaring the court's
determination shall be entered. If the court determines that such interests
have not been adequately represented and protected, the agreement shall be
declared of no effect.
NEW
SECTION. Sec. 405.
SPECIAL REPRESENTATIVE. (1)(a) The personal representative or trustee may
petition the court having jurisdiction over the matter for the appointment of a
special representative to represent a person who is interested in the estate or
trust and: (i) Who is a minor; (ii) who is incompetent or disabled; (iii) who
is yet unborn or unascertained; or (iv) whose identity or address is unknown.
The petition may be heard by the court without notice.
(b)
The special representative may enter into a binding agreement on behalf of the
person or beneficiary. The special representative may be appointed for more
than one person or class of persons if the interests of such persons or class
are not in conflict. The petition and order appointing the special
representative may be in the following form:
CAPTION PETITION FOR APPOINTMENT
OF CASE OF SPECIAL REPRESENTATIVE
UNDER
SECTION 405 OF THIS ACT
The
undersigned petitioner petitions the court for the appointment of a special
representative in accordance with section 405 of this act and shows the court
as follows:
1.
Petitioner. Petitioner . . . is the qualified and presently acting
(personal representative) (trustee) of the above (estate) (trust) having been
named (personal representative) (trustee) under (describe will and reference
probate order or describe trust instrument).
2.
Issue Concerning (Estate) (Trust) Administration. A question concerning
administration of the (estate) (trust) has arisen as to (describe issue, for
example: related to interpretation, construction, administration,
distribution). The issues are appropriate for determination under section 405
of this act.
3.
Beneficiaries. The beneficiaries of the (estate) (trust) include persons who
are unborn, unknown, or unascertained persons, or who are under eighteen years
of age.
4.
Resolution. Petitioner desires to achieve a resolution of the questions that
have arisen concerning the (estate) (trust). Petitioner believes that
proceeding in accordance with the procedures permitted under sections 401
through 405 of this act would be in the best interests of the (estate) (trust)
and the beneficiaries.
5.
Request of Court. Petitioner requests that . . ., . . . an
attorney licensed to practice in the State of Washington.
(OR)
. . . .
an individual with special skill or training in the administration of estates
or trusts
be
appointed special representative for those beneficiaries who are not yet
adults, as well as for the unborn, unknown, and unascertained beneficiaries, as
provided under section 405 of this act.
DATED this . . . day of . . . . .,
. . . .
. . . . . . . . . . . . . . .
(Petitioner or petitioner's
legal
representative)
CAPTION ORDER FOR APPOINTMENT
OF CASE OF
SPECIAL REPRESENTATIVE
THIS
MATTER having come on for hearing before this Court on Petition for Appointment
of Special Representative filed herein, and it appearing that it would be in
the best interests of the (estate) (trust) described in the Petition to appoint
a special representative to address the issues that have arisen concerning the
(estate) (trust) and the Court finding that the facts stated in the Petition
are true, now, therefore,
IT
IS ORDERED that . . . is appointed under section 405 of this act as
special representative for the (estate) (trust) beneficiaries who are not yet
adult age, and for unborn, unknown, or unascertained beneficiaries to represent
their respective interests in the (estate) (trust) as provided in section 405
of this act. The special representative shall be discharged of responsibility
with respect to the (estate) (trust) at such time as a written agreement is
executed resolving the present issues, all as provided in that statute, or if
an agreement is not reached within six months from entry of this Order, the
special representative appointed under this Order shall be discharged of
responsibility, subject to subsequent reappointment under section 405 of this
act.
DONE
IN OPEN COURT this . . . day of . . . . .,
. . . .
. . . . . .
. . . . . . . . .
JUDGE/COURT
COMMISSIONER
(2)
The special representative must be a lawyer licensed to practice before the
courts of this state or an individual with special skill or training in the
administration of estates or trusts. The special representative may not have
an interest in the affected estate or trust, and may not be related to a person
interested in the estate or trust. The special representative is entitled to
reasonable compensation for services that must be paid from the principal of
the estate or trust whose beneficiaries are represented.
(3)
The special representative shall be discharged from any responsibility and
shall have no further duties with respect to the estate or trust or with
respect to any person interested in the estate or trust, on the earlier of:
(a) The expiration of six months from the date the special representative was
appointed unless the order appointing the special representative provides
otherwise, or (b) the execution of the written agreement by all parties or
their virtual representatives. Any action against a special representative
must be brought within the time limits provided by section 204(3)(c)(i) of this
act.
PART
V
PARTY-INITIATED
MEDIATION AND ARBITRATION
NEW
SECTION. Sec. 501.
PREAMBLE. The legislature finds that it is in the interest of the citizens of
the state of Washington to encourage the prompt and early resolution of
disputes in trust, estate, and nonprobate matters. The legislature endorses
the use of dispute resolution procedures by means other than litigation. The
legislature also finds that the former chapter providing for the nonjudicial
resolution of trust, estate, and nonprobate disputes, chapter 11.96 RCW, has
resulted in the successful resolution of thousands of disputes since 1984. The
nonjudicial procedure has resulted in substantial savings of public funds by
removing those disputes from the court system. Enhancement of the statutory
framework supporting the nonjudicial process in chapter 11.96 RCW would be
beneficial and would foster even greater use of nonjudicial dispute methods to
resolve trust, estate, and nonprobate disputes. The legislature further finds
that it would be beneficial to allow parties to disputes involving trusts,
estates, and nonprobate assets to have access to a process for required
mediation followed by arbitration using mediators and arbitrators experienced
in trust, estate, and nonprobate matters. Finally, the legislature also
believes it would be beneficial to parties with disputes in trusts, estates,
and nonprobate matters to clarify and streamline the statutory framework
governing the procedures governing these cases in the court system.
Therefore,
the legislature adopts sections 502 through 507 of this act, that enhance
chapter 11.96 RCW and allow required mediation and arbitration in disputes
involving trusts, estates, and nonprobate matters that are brought to the
courts. Sections 502 through 507 of this act also set forth specific civil procedures
for handling trust and estate disputes in the court system. It is intended
that the adoption of sections 502 through 507 of this act will encourage and
direct all parties in trust, estate, and nonprobate matter disputes, and the
court system, to provide for expeditious, complete, and final decisions to be
made in disputed trust, estate, and nonprobate matters.
NEW
SECTION. Sec. 502.
GENERAL INTENT‑-PARTIES CAN AGREE OTHERWISE. The intent of sections 501
through 507 of this act is to provide for the efficient settlement of disputes
in trust, estate, and nonprobate matters through mediation and arbitration by
providing any party the right to proceed first with mediation and then
arbitration before formal judicial procedures may be utilized. Accordingly,
any of the requirements or rights under sections 501 through 507 of this act
are subject to any contrary agreement between the parties or the parties'
virtual representatives.
NEW
SECTION. Sec. 503.
SCOPE. A party may cause the matter to be presented for mediation and then
arbitration, as provided under sections 501 through 507 of this act. If a
party causes the matter to be presented for resolution under sections 501
through 507 of this act, then judicial resolution of the matter, as provided in
section 203 of this act or by any other civil action, is available only by
complying with the mediation and arbitration provisions of sections 501 through
507 of this act.
NEW
SECTION. Sec. 504.
SUPERIOR COURT‑-VENUE. As used in sections 501 through 507 of this act,
"superior court" means: (1) Before the commencement of any legal
proceedings, the appropriate superior court with respect to the matter as
provided in section 201 of this act; and (2) if legal proceedings have been
commenced with respect to the matter, the superior court in which the
proceedings are pending.
NEW
SECTION. Sec. 505.
MEDIATION PROCEDURE. (1) Notice of mediation. A party may cause the matter to
be subject to mediation by service of written notice of mediation on all
parties or the parties' virtual representatives as follows:
(a)
If no hearing has been set. If no hearing on the matter has been set, by
serving notice in substantially the following form before any petition setting
a hearing on the matter is filed with the court:
NOTICE OF MEDIATION UNDER SECTION 505 OF THIS ACT
To: (Parties)
Notice is hereby given that the following matter shall be resolved by
mediation under section 505 of this act:
(State nature of matter)
This
matter must be resolved using the mediation procedures of section 505 of this
act unless a petition objecting to mediation is filed with the superior court
within twenty days of service of this notice. If a petition objecting to
mediation is not filed within the twenty-day period, section 505(4) of this act
requires you to furnish to all other parties or their virtual representatives a
list of acceptable mediators within thirty days of your receipt of this notice.
(Optional:
Our list of acceptable mediators is as follows:)
DATED: . . . . . .
. . . . . . . . . . . . . . .
(Party
or party's legal representative)
(b)
If a hearing has been set. If a hearing on the matter has been set, by filing
and serving notice in substantially the following form at least three days
prior to the hearing that has been set on the matter:
NOTICE
OF MEDIATION UNDER SECTION 505 OF THIS ACT
To:
(Parties)
Notice
is hereby given that the following matter shall be resolved by mediation under
section 505 of this act:
(State
nature of matter)
This
matter must be resolved using the mediation procedures of section 505 of this
act unless the court determines at the hearing set for
. . . o'clock on . . . . . , (identify
place of already set hearing), that mediation shall not apply pursuant to section
505(3) of this act. If the court determines that mediation shall not apply,
the court may decide the matter at the hearing, require arbitration, or direct
other judicial proceedings.
(Optional:
Our list of acceptable mediators is as follows:)
DATED: . . . . . .
. . . . . . . . . . . . . . .
(Party
or party's legal representative)
(2)
Procedure when notice of mediation served before a hearing is set. The
following provisions apply when notice of mediation is served before a hearing
on the matter is set:
(a)
The written notice required in subsection (1)(a) of this section may be served
at any time without leave of the court.
(b)
Any party may object to a notice of mediation under subsection (1)(a) of this
section by filing a petition with the superior court and serving the petition
on all parties or the parties' virtual representatives. The party objecting to
notice of mediation under subsection (1)(a) of this section must file and serve
the petition objecting to mediation no later than twenty days after receipt of
the written notice of mediation. The petition may include a request for
determination of matters subject to judicial resolution under sections 301 through
313 of this act, and may also request that the matters in issue be decided at
the hearing.
(c)
The hearing on the petition objecting to mediation must be heard no later than
twenty days after the filing of that petition.
(d)
The party objecting to mediation must give notice of the hearing to all other
parties at least ten days before the hearing and must include a copy of the
petition.
At the
hearing, the court shall order that mediation proceed except for good cause
shown. Such order shall not be subject to appeal or revision. If the court
determines that the matter should not be subject to mediation, the court shall
dispose of the matter by: (i) Deciding the matter at that hearing, but only if
the petition objecting to mediation contains a request for that relief, (ii)
requiring arbitration, or (iii) directing other judicial proceedings.
(3)
Procedure when notice of mediation served after hearing set. If the written
notice of mediation required in subsection (1)(b) of this section is timely
filed and served by a party and another party objects to mediation, by petition
or orally at the hearing, the court shall order that mediation proceed except
for good cause shown. Such order shall not be subject to appeal or revision.
If the court determines that the matter should not be subject to mediation, the
court shall dispose of the matter by: (a) Deciding the matter at that hearing,
(b) requiring arbitration, or (c) directing other judicial proceedings.
(4)
Selection of mediator; mediator qualifications.
(a)
If a petition objecting to mediation is not filed as provided in subsection (3)
of this section, or if a court determines that mediation shall apply, each
party shall, within thirty days of receipt of the initial notice or within
twenty days after the court determination, whichever is later, furnish all
other parties or the parties' virtual representatives a list of qualified and acceptable
mediators. If the parties cannot agree on a mediator within ten days after the
list is required to be furnished, a party may petition the court to appoint a
mediator. All parties may submit a list of qualified and acceptable mediators
to the court no later than the date on which the hearing on the petition is to
be held. At the hearing the court shall select a qualified mediator from lists
of acceptable mediators provided by the parties.
(b)
A qualified mediator must be: (i) An attorney licensed to practice before the
courts of this state having at least five years of experience in estate and
trust matters, (ii) an individual, who may be an attorney, with special skill
or training in the administration of trusts and estates, or (iii) an individual,
who may be an attorney, with special skill or training as a mediator. The
mediator may not have an interest in an affected estate, trust, or nonprobate
asset, and may not be related to a party.
(5)
Date for mediation. Upon designation of a mediator by the parties or court
appointment of a mediator, the mediator and the parties or the parties' virtual
representatives shall establish a date for the mediation. If a date cannot be
agreed upon within ten days of the designation or appointment of the mediator,
a party may petition the court to set a date for the mediation session.
(6)
Duration of mediation. The mediation must last at least three hours unless the
matter is earlier resolved.
(7)
Mediation agreement. A resolution of the matter that is the subject of the
mediation must be evidenced by a nonjudicial dispute resolution agreement under
section 302 of this act.
(8)
Costs of mediation. Costs of the mediation, including reasonable compensation
for the mediator's services, shall be borne equally by the parties. The
details of those costs and fees, including the compensation of the mediator,
must be set forth in a mediation agreement between the mediator and all parties
to the matter. Each party shall bear its own costs and expenses, including legal
fees and witness expenses, in connection with the mediation proceeding: (a)
Except as may occur otherwise as provided in section 507 of this act, or (b)
unless the matter is not resolved by mediation and the arbitrator or court
finally resolving the matter directs otherwise.
NEW
SECTION. Sec. 506.
ARBITRATION PROCEDURE. (1) When arbitration available. Arbitration under
sections 501 through 507 of this act is available only if:
(a)
A party has first petitioned for mediation under section 505 of this act and
such mediation has been concluded;
(b)
The court has determined that mediation under section 505 of this act is not
required and has not ordered that the matter be disposed of in some other
manner;
(c)
All of the parties or the parties' virtual representatives have agreed not to
use the mediation procedures of section 505 of this act; or
(d)
The court has ordered that the matter must be submitted to arbitration.
(2)
Commencement of arbitration. Arbitration must be commenced as follows:
(a)
If the matter is not settled through mediation under section 505 of this act,
or the court orders that mediation is not required, a party may commence
arbitration by serving written notice of arbitration on all other parties or
the parties' virtual representatives. The notice must be served no later than
twenty days after the later of the conclusion of the mediation procedure, if
any, or twenty days after entry of the order providing that mediation is not
required. If arbitration is ordered by the court under section 505(3) of this
act, arbitration must proceed in accordance with the order.
(b)
If the parties or the parties' virtual representatives agree that mediation
does not apply and have not agreed to another procedure for resolving the
matter, a party may commence arbitration without leave of the court by serving
written notice of arbitration on all other parties or the parties' virtual
representatives at any time before or at the initial judicial hearing on the
matter. After the initial judicial hearing on the matter, the written notice
required in subsection (1) of this section may only be served with leave of the
court.
Any
notice required by this section must be in substantially the following form:
NOTICE
OF ARBITRATION UNDER SECTION 506 OF THIS ACT
To:
(Parties)
Notice
is hereby given that the following matter must be resolved by arbitration under
section 506 of this act:
(State
nature of matter)
The
matter must be resolved using the arbitration procedures of section 506 of this
act unless a petition objecting to arbitration is filed with the superior court
within twenty days of receipt of this notice. If a petition objecting to
arbitration is not filed within the twenty-day period, section 506 of this act
requires you to furnish to all other parties or the parties' virtual
representatives a list of acceptable mediators within thirty days of your
receipt of this notice.
(Optional:
Our list of acceptable arbitrators is as follows:)
DATED:
. . . . . .
. . . . . . . . . . . . . . .
(Party
or party's legal representative)
(3)
Objection to arbitration. A party may object to arbitration by filing a
petition with the superior court and serving the petition on all parties or the
parties' virtual representatives. The objection to arbitration may be filed at
any time unless a written notice of arbitration has been served, in which case
the objection to arbitration must be filed and served no later than twenty days
after receipt of the written notice of arbitration. The hearing on the
objection to arbitration must be heard no later than twenty days after the
filing of that petition. The party objecting to arbitration must give notice
of the hearing to all parties at least ten days before the hearing and shall
include a copy of the petition. At the hearing, the court shall order that
arbitration proceed except for good cause shown. Such order shall not be
subject to appeal or revision. If the court determines that the matter should
not be subject to arbitration, the court shall dispose of the matter by: (a)
Deciding the matter at that hearing, but only if the petition objecting to
arbitration contains a request for such relief; or (b) directing other judicial
proceedings.
(4)
Selection of arbitrator; qualifications of arbitrator.
(a)
If a petition objecting to arbitration is not filed as provided in subsection
(3) of this section, or if a court determines that arbitration must apply, each
party shall, within thirty days of receipt of the initial notice or within
twenty days after the court determination, whichever is later, furnish all
other parties or the parties' virtual representatives a list of acceptable
arbitrators. If the parties cannot agree on an arbitrator within ten days after
the list is required to be furnished, a party may petition the court to appoint
an arbitrator. All parties may submit a list of qualified and acceptable
arbitrators to the court no later than the date on which the hearing on the
petition is to be held. At the hearing the court shall select a qualified
arbitrator from lists of acceptable arbitrators provided by the parties.
(b)
A qualified arbitrator must be an attorney licensed to practice before the
courts of this state having at least five years of experience in trust or
estate matters or five years of experience in litigation or other formal
dispute resolution involving trusts or estates, or an individual, who may be an
attorney, with special skill or training with respect to the matter. The arbitrator
may be the same person selected and used as a mediator under the mediation
procedures of section 505 of this act.
(5)
Arbitration rules. Arbitration must be under chapter 7.06 RCW, mandatory
arbitration of civil actions, as follows:
(a)
Chapter 7.06 RCW, the superior court mandatory arbitration rules adopted by the
supreme court, and any local rules for mandatory arbitration adopted by the
superior court apply to this title. If the superior court has not adopted
chapter 7.06 RCW, then the local rules for mandatory arbitration applicable in
King county apply, except all the duties of the director of arbitration must be
performed by the presiding judge of the superior court.
(b)
If a party has already filed a petition with the court with respect to the
matter that will be the subject of the arbitration proceedings, then all other
parties to the arbitration proceedings who have not yet filed a reply thereto
must file a reply with the arbitrator within ten days of the date on which the arbitrator
is selected or appointed.
(c)
The arbitration provisions of this subsection apply to all matters in dispute.
The dollar limits and restrictions to monetary damages of RCW 7.06.020 do not
apply to arbitrations under this subsection. To the extent any provision in
this title is inconsistent with chapter 7.06 RCW or the rules referenced in (a)
of this subsection, the provisions of this title control.
(d)
The compensation of the arbitrator must be set by written agreement between the
parties and the arbitrator. The arbitrator must be compensated at the
arbitrator's stated rate of compensation for acting as an arbitrator of
disputes in trusts, estates, and nonprobate matters unless the parties or the
parties' virtual representatives agree otherwise.
(e)
Unless directed otherwise by the arbitrator in accord with subsection (6) of
this section or section 507 of this act, or unless the matter is not resolved
by arbitration and the court finally resolving the matter directs otherwise:
(i)
Costs of the arbitration, including compensation for the arbitrator's services,
must be borne equally by the parties participating in the arbitration, with the
details of those costs and fees to be set forth in an arbitration agreement
between the arbitrator and all parties to the matter; and
(ii)
A party shall bear its own costs and expenses, including legal fees and witness
expenses, in connection with the arbitration proceeding.
(f)
The arbitrator and the parties shall execute a written agreement setting forth
the terms of the arbitration and the process to be followed. This agreement
must also contain the fee agreement provided in (d) of this subsection. A
dispute as to this agreement must be resolved by the director of arbitration.
(g)
The rules of evidence and discovery applicable to civil causes of action before
the superior court as defined in section 504 of this act apply, unless the
parties have agreed otherwise or the arbitrator rules otherwise.
(6)
Costs of arbitration. The arbitrator may order costs, including reasonable
attorneys' fees and expert witness fees, to be paid by any party to the
proceedings as justice may require.
(7)
Decision of arbitrator. The arbitrator shall issue a final decision in writing
within thirty days of the conclusion of the final arbitration hearing. The
final decision may be appealed by filing a notice of appeal with the superior
court within thirty days of the issuance of the written decision in the
arbitration proceeding. If an appeal is not filed as provided in this section,
the arbitration decision is conclusive and binding on all parties.
(8)
Arbitration decision may be filed with court; appeal. Any party to the
arbitration may file the arbitrator's decision with the clerk of the superior
court, together with proof of service thereof on the parties. Within twenty
days after such filing, any aggrieved party may file with the clerk a written
notice of appeal and request for a trial de novo in the superior court on all
issues of law and fact. Such trial de novo shall thereupon be held, including
a right to jury, if demanded.
If
no appeal has been filed at the expiration of twenty days following filing of
the arbitrator's decision and award, a judgment shall be entered and may be
presented to the court by any party, on notice, which judgment when entered
shall have the same force and effect as judgments in civil actions.
(9)
Costs on appeal of arbitration decision. The prevailing party in any such de
novo superior court decision after an arbitration result must be awarded costs,
including expert witness fees and attorneys' fees, in connection with the
judicial resolution of the matter. Such costs shall be charged against the
nonprevailing parties in such amount and in such manner as the court determines
to be equitable. The provisions of this subsection take precedence over the
provisions of section 308 of this act or any other similar provision.
NEW
SECTION. Sec. 507.
PETITION FOR ORDER COMPELLING COMPLIANCE. If a party does not comply with any
procedure of sections 501 through 506 of this act, the other party or parties
may petition the superior court for an order compelling compliance. A party
obtaining an order compelling compliance is entitled to reimbursement of costs
and attorneys' fees incurred in connection with: The petition and any other
actions taken after the issuance of the order to compel compliance with the
order, unless the court at the hearing on the petition determines otherwise for
good cause shown. Reimbursement must be from the party or parties whose
failure to comply was the basis for the petition.
PART
VI
CONFORMING
AMENDMENTS
Sec.
601. RCW
11.40.020 and 1997 c 252 s 8 are each amended to read as follows:
(1)
Subject to subsection (2) of this section, 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 RCW 11.40.051 or be forever barred as to claims against the
decedent's probate and nonprobate assets. If notice is given:
(((1)))
(a) The personal representative shall first file the original of the
notice with the court;
(((2)))
(b) 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, and if the decedent was a
Washington resident, in the county of the decedent's residence at the time of
death, if different;
(((3)))
(c) 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)))
(d) 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.
(2)
If the decedent was a resident of the state of Washington at the time of death
and probate proceedings are commenced in a county other than the county of the
decedent's residence, then notice to the creditors of the decedent as directed
in RCW 11.40.030 must be filed with the superior court of the county of the
decedent's residence.
Sec.
602. RCW
4.16.370 and 1985 c 11 s 3 are each amended to read as follows:
The
statute of limitations for actions against a personal representative or trustee
for breach of fiduciary duties is as set forth in ((RCW 11.96.060)) section
204 of this act.
Sec.
603. RCW
6.15.020 and 1997 c 20 s 1 are each amended to read as follows:
(1)
It is the policy of the state of Washington to ensure the well-being of its
citizens by protecting retirement income to which they are or may become
entitled. For that purpose generally and pursuant to the authority granted to
the state of Washington under 11 U.S.C. Sec. 522(b)(2), the exemptions in this
section relating to retirement benefits are provided.
(2)
Unless otherwise provided by federal law, any money received by any citizen of
the state of Washington as a pension from the government of the United States,
whether the same be in the actual possession of such person or be deposited or
loaned, shall be exempt from execution, attachment, garnishment, or seizure by
or under any legal process whatever, and when a debtor dies, or absconds, and
leaves his or her family any money exempted by this subsection, the same shall
be exempt to the family as provided in this subsection. This subsection shall
not apply to child support collection actions issued under chapter 26.18,
26.23, or 74.20A RCW, if otherwise permitted by federal law.
(3)
The right of a person to a pension, annuity, or retirement allowance or
disability allowance, or death benefits, or any optional benefit, or any other
right accrued or accruing to any citizen of the state of Washington under any
employee benefit plan, and any fund created by such a plan or arrangement,
shall be exempt from execution, attachment, garnishment, or seizure by or under
any legal process whatever. This subsection shall not apply to child support
collection actions issued under chapter 26.18, 26.23, or 74.20A RCW if
otherwise permitted by federal law. This subsection shall permit benefits
under any such plan or arrangement to be payable to a spouse, former spouse,
child, or other dependent of a participant in such plan to the extent expressly
provided for in a qualified domestic relations order that meets the
requirements for such orders under the plan, or, in the case of benefits
payable under a plan described in sections 403(b) or 408 of the internal
revenue code of 1986, as amended, or section 409 of such code as in effect
before January 1, 1984, to the extent provided in any order issued by a court
of competent jurisdiction that provides for maintenance or support. This
subsection shall not prohibit actions against an employee benefit plan, or fund
for valid obligations incurred by the plan or fund for the benefit of the plan
or fund.
(4)
For the purposes of this section, the term "employee benefit plan"
means any plan or arrangement that is described in RCW 49.64.020, including any
Keogh plan, whether funded by a trust or by an annuity contract, and in
sections 401(a) or 403(a) of the internal revenue code of 1986, as amended; or
that is described in sections 403(b) or 408 of the internal revenue code of
1986, as amended, or section 409 of such code as in effect before January 1,
1984. The term "employee benefit plan" shall not include any employee
benefit plan that is established or maintained for its employees by the
government of the United States, by the state of Washington or any political
subdivision thereof, or by any agency or instrumentality of any of the
foregoing.
(5)
An employee benefit plan shall be deemed to be a spendthrift trust, regardless
of the source of funds, the relationship between the trustee or custodian of
the plan and the beneficiary, or the ability of the debtor to withdraw or
borrow or otherwise become entitled to benefits from the plan before
retirement. This subsection shall not apply to child support collection
actions issued under chapter 26.18, 26.23, or 74.20A RCW, if otherwise
permitted by federal law. This subsection shall permit benefits under any such
plan or arrangement to be payable to a spouse, former spouse, child, or other
dependent of a participant in such plan to the extent expressly provided for in
a qualified domestic relations order that meets the requirements for such
orders under the plan, or, in the case of benefits payable under a plan
described in sections 403(b) or 408 of the internal revenue code of 1986, as
amended, or section 409 of such code as in effect before January 1, 1984, to
the extent provided in any order issued by a court of competent jurisdiction
that provides for maintenance or support.
(6)
Unless contrary to applicable federal law, nothing contained in subsection (3),
(4), or (5) of this section shall be construed as a termination or limitation
of a spouse's community property interest in an individual retirement account
held in the name of or on account of the other spouse, the account holder
spouse. At the death of the nonaccount holder spouse, the nonaccount holder
spouse may transfer or distribute the community property interest of the
nonaccount holder spouse in the account holder spouse's individual retirement
account to the nonaccount holder spouse's estate, testamentary trust, inter
vivos trust, or other successor or successors pursuant to the last will of the
nonaccount holder spouse or the law of intestate succession, and that
distributee may, but shall not be required to, obtain an order of a court of
competent jurisdiction, including any order entered under chapter ((11.96))
11.‑- RCW (sections 101 through 507 of this act), to
confirm the distribution. For purposes of subsection (3) of this section, the
distributee of the nonaccount holder spouse's community property interest in an
individual retirement account shall be considered a person entitled to the full
protection of subsection (3) of this section. The nonaccount holder spouse's
consent to a beneficiary designation by the account holder spouse with respect
to an individual retirement account shall not, absent clear and convincing
evidence to the contrary, be deemed a release, gift, relinquishment,
termination, limitation, or transfer of the nonaccount holder spouse's
community property interest in an individual retirement account. For purposes
of this subsection, the term "nonaccount holder spouse" means the
spouse of the person in whose name the individual retirement account is
maintained. The term "individual retirement account" includes an
individual retirement account and an individual retirement annuity both as
described in section 408 of the internal revenue code of 1986, as amended, and
an individual retirement bond as described in section 409 of the internal
revenue code as in effect before January 1, 1984. As used in this subsection,
an order of a court of competent jurisdiction includes an agreement, as that
term is used under ((RCW 11.96.170)) section 402 of this act.
Sec.
604. RCW
11.12.120 and 1994 c 221 s 15 are each amended to read as follows:
(1)
If a will makes a gift to a person on the condition that the person survive the
testator and the person does not survive the testator, then, unless otherwise
provided, the gift lapses and falls into the residue of the estate to be
distributed under the residuary clause of the will, if any, but otherwise
according to the laws of descent and distribution.
(2)
If the will gives the residue to two or more persons, the share of a person who
does not survive the testator passes, unless otherwise provided, and subject to
RCW 11.12.110, to the other person or persons receiving the residue, in
proportion to the interest of each in the remaining part of the residue.
(3)
The personal representative of the testator, a person who would be affected by
the lapse or distribution of a gift under this section, or a guardian ad litem
or other representative appointed to represent the interests of a person so
affected may petition the court for a determination under this section, and the
petition must be heard under the procedures of chapter ((11.96)) 11.‑-
RCW (sections 101 through 507 of this act).
Sec.
605. RCW
11.18.200 and 1997 c 252 s 3 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)) 11.‑- RCW (sections 101 through 507 of
this act), 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.
606. RCW
11.28.240 and 1997 c 252 s 4 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:
(a)
Filing of petitions for sales, leases, exchanges or mortgages of any property
of the estate.
(b)
Petitions for any order of solvency or for nonintervention powers.
(c)
Filing of accounts.
(d)
Filing of petitions for distribution.
(e)
Petitions by the personal representative for family allowances and homesteads.
(f)
The filing of a declaration of completion.
(g)
The filing of the inventory.
(h)
Notice of presentation of personal representative's claim against the estate.
(i)
Petition to continue a going business.
(j)
Petition to borrow upon the general credit of the estate.
(k)
Petition for judicial proceedings under chapter ((11.96)) 11.‑-
RCW (sections 101 through 507 of this act).
(l)
Petition to reopen an estate.
(m)
Intent to distribute estate assets, other than distributions in satisfaction of
specific bequests or legacies of specific dollar amounts.
(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.
607. RCW
11.40.040 and 1997 c 252 s 10 are each amended to read as follows:
(1)
For purposes of RCW 11.40.051, 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 RCW 11.40.051. 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)) section 301 of
this act and the notice specified under ((RCW 11.96.100)) section
304 of this act must also be given by publication.
Sec.
608. RCW
11.40.140 and 1997 c 252 s 21 are each amended to read as follows:
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)) section 301 of this act. This section
applies whether or not the personal representative is acting under
nonintervention powers.
Sec.
609. RCW
11.42.010 and 1997 c 252 s 24 are each amended to read as follows:
(1)
Subject to the conditions stated in this chapter, and if no personal
representative has been appointed in 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)) section 402 of this act,
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.
610. RCW
11.42.040 and 1997 c 252 s 27 are each amended to read as follows:
(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)) section 301 of this act, and the notice specified under
((RCW 11.96.100)) section 304 of this act must also be given by
publication.
Sec.
611. RCW
11.42.085 and 1997 c 252 s 32 are each amended 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)) section 402 of this act or by court order
issued in a judicial proceeding under ((RCW 11.96.070)) section
301 of this act.
Sec.
612. RCW
11.54.080 and 1997 c 252 s 55 are each amended to read as follows:
(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 RCW 11.54.010;
(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)) section 304 of
this act.
(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.
Sec.
613. RCW
11.54.090 and 1997 c 252 s 56 are each amended to read as follows:
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)) decedent
was domiciled at the time of death. If the decedent was not domiciled in the
state of Washington at the time of death, the petition may be made to the court
of any county in which the decedent's estate could be administered under
section 202 of this act. The petition and the hearing must conform to ((RCW
11.96.070)) sections 301 through 313 of this act. Notice of the
hearing on the petition must be given in accordance with ((RCW 11.96.100))
section 304 of this act.
Sec.
614. RCW
11.68.065 and 1997 c 252 s 64 are each amended 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))
section 304 of this act, 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.
615. RCW
11.68.080 and 1997 c 252 s 65 are each amended to read as follows:
(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)) section 301 of this act
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))
section 304 of this act.
(3)
If, upon a petition under ((chapter 11.96 RCW)) section 301 of this
act 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 the
endorsement.
Sec.
616. RCW
11.92.140 and 1991 c 193 s 32 are each amended to read as follows:
The
court, upon the petition of a guardian of the estate of an incapacitated person
other than the guardian of a minor, and after such notice as the court directs
and other notice to all persons interested as required by chapter ((11.96))
11.‑- RCW (sections 101 through 507 of this act), may
authorize the guardian to take any action, or to apply funds not required for
the incapacitated person's own maintenance and support, in any fashion the
court approves as being in keeping with the incapacitated person's wishes so
far as they can be ascertained and as designed to minimize insofar as possible
current or prospective state or federal income and estate taxes, permit
entitlement under otherwise available federal or state medical or other
assistance programs, and to provide for gifts to such charities, relatives, and
friends as would be likely recipients of donations from the incapacitated
person.
The
action or application of funds may include but shall not be limited to the
making of gifts, to the conveyance or release of the incapacitated person's
contingent and expectant interests in property including marital property
rights and any right of survivorship incident to joint tenancy or tenancy by
the entirety, to the exercise or release of the incapacitated person's powers
as donee of a power of appointment, the making of contracts, the creation of
revocable or irrevocable trusts of property of the incapacitated person's
estate which may extend beyond the incapacitated person's disability or life,
the establishment of custodianships for the benefit of a minor under chapter ((11.93))
11.114 RCW, the Washington uniform transfers to minors act, the exercise
of options of the incapacitated person to purchase securities or other
property, the exercise of the incapacitated person's right to elect options and
to change beneficiaries under insurance and annuity policies and the
surrendering of policies for their cash value, the exercise of the
incapacitated person's right to any elective share in the estate of the
incapacitated person's deceased spouse, and the renunciation or disclaimer of
any interest acquired by testate or intestate succession or by inter vivos
transfer.
The
guardian in the petition shall briefly outline the action or application of
funds for which approval is sought, the results expected to be accomplished
thereby and the savings expected to accrue. The proposed action or application
of funds may include gifts of the incapacitated person's personal or real
property. Gifts may be for the benefit of prospective legatees, devisees, or
heirs apparent of the incapacitated person, or may be made to individuals or
charities in which the incapacitated person is believed to have an interest.
Gifts may or may not, in the discretion of the court, be treated as
advancements to donees who would otherwise inherit property from the
incapacitated person under the incapacitated person's will or under the laws of
descent and distribution. The guardian shall also indicate in the petition
that any planned disposition is consistent with the intentions of the
incapacitated person insofar as the intentions can be ascertained, and if the
incapacitated person's intentions cannot be ascertained, the incapacitated
person will be presumed to favor reduction in the incidence of the various
forms of taxation and the partial distribution of the incapacitated person's
estate as provided in this section. The guardian shall not, however, be
required to include as a beneficiary any person whom there is reason to believe
would be excluded by the incapacitated person. No guardian may be required to
file a petition as provided in this section, and a failure or refusal to so petition
the court does not constitute a breach of the guardian's fiduciary duties.
Sec.
617. RCW
11.95.140 and 1997 c 252 s 74 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)) section 301 of this act 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 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.
618. RCW
11.98.039 and 1985 c 30 s 44 are each amended to read as follows:
(1)
Where a vacancy occurs in the office of the trustee and there is a successor
trustee who is willing to serve as trustee and (a) is named in the governing
instrument as successor trustee or (b) has been selected to serve as successor
trustee under the procedure established in the governing instrument for the
selection of a successor trustee, the outgoing trustee, or any other interested
party, shall give notice of such vacancy, whether arising because of the
trustee's resignation or because of any other reason, and of the successor
trustee's agreement to serve as trustee, to all adult income beneficiaries of
the trust and to all known and identifiable adults for whom the income of the
trust is being accumulated. If there are no such adults, no notice need be
given. The successor trustee named in the governing instrument or selected
pursuant to the procedure therefor established in the governing instrument
shall be entitled to act as trustee except for good cause or disqualification.
The successor trustee shall serve as of the effective date of the discharge of
the predecessor trustee as provided in RCW ((11.98.040)) 11.98.041.
(2)
Where a vacancy exists or occurs in the office of the trustee and there is no
successor trustee who is named in the governing instrument or who has been
selected to serve as successor trustee under the procedure established in the
governing instrument for the selection of a successor trustee, and who is
willing to serve as trustee, the beneficiaries and the then-acting trustee, if
any, of a trust may agree ((for the)) to a nonjudicial change of
the trustee under ((RCW 11.96.170)) section 402 of this act.
The trustee, or any beneficiary if there is no then-acting trustee, shall give
written notice of the proposed change in trustee to every beneficiary or
special representative, and to the trustor if alive. The notice shall: (a)
State the name and mailing address of the trustee or the beneficiary giving the
notice; (b) include a copy of the governing instrument; (c) state the name and
mailing address of the successor trustee; and (d) include a copy of the
proposed successor trustee's agreement to serve as trustee. The notice shall
advise the recipient of the right to petition for a judicial appointment or
change in trustee as provided in subsection (3) of this section. The notice
shall include a form on which consent or objection to the proposed change in
trustee may be indicated. The successor trustee shall serve as of the
effective date of the discharge of the predecessor trustee as provided in RCW
11.98.041 or, in circumstances where there is no predecessor trustee, as of the
effective date of the trustee's appointment.
(3)
Any beneficiary of a trust, the trustor if alive, or the trustee may petition
the superior court having jurisdiction for the appointment or change of a
trustee under the procedures provided in ((chapter 11.96 RCW)) sections
301 through 313 of this act: (a) Whenever the office of trustee
becomes vacant((,)); (b) upon filing of a petition of resignation
by a trustee((,)); (c) upon the giving of notice of the change in
trustee as referred to in subsection (1) or (2) of this section((,));
or (d) for any other reasonable cause.
(4)
For purposes of this subsection, the term fiduciary includes both trustee and
personal representative.
(a)
Except as otherwise provided in the governing instrument, a successor
fiduciary, absent actual knowledge of a breach of fiduciary duty: (i) Is not
liable for any act or omission of a predecessor fiduciary and is not obligated
to inquire into the validity or propriety of any such act or omission; (ii) is
authorized to accept as conclusively accurate any accounting or statement of
assets tendered to the successor fiduciary by a predecessor fiduciary; and
(iii) is authorized to receipt only for assets actually delivered and has no
duty to make further inquiry as to undisclosed assets of the trust or estate.
(b)
Nothing in this section relieves a successor fiduciary from liability for
retaining improper investments, nor does this section in any way bar the
successor fiduciary, trust beneficiaries, or other party in interest from
bringing an action against a predecessor fiduciary arising out of the acts or
omissions of the predecessor fiduciary, nor does it relieve the successor fiduciary
of liability for its own acts or omissions except as specifically stated or
authorized in this section.
Sec.
619. RCW
11.98.051 and 1985 c 30 s 46 are each amended to read as follows:
(1)
The trustee may transfer trust assets or the place of administration in
accordance with ((RCW 11.96.170)) section 402 of this act. In
addition, the trustee shall give written notice to those persons entitled to
notice as provided for under ((RCW 11.96.100 and 11.96.110)) section
304 of this act and to the attorney general in the case of a charitable
trust subject to chapter 11.110 RCW. The notice shall:
(a)
State the name and mailing address of the trustee;
(b)
Include a copy of the governing instrument of the trust;
(c)
Include a statement of assets and liabilities of the trust dated within ninety
days of the notice;
(d)
State the name and mailing address of the trustee to whom the assets or
administration will be transferred together with evidence that the trustee has
agreed to accept the assets or trust administration in the manner provided by
law of the new place of administration. The notice shall also contain a
statement of the trustee's qualifications and the name of the court, if any,
having jurisdiction of that trustee or in which a proceeding with respect to
the administration of the trust may be heard;
(e)
State the facts supporting the requirements of RCW 11.98.045(2);
(f)
Advise the beneficiaries of the right to petition for judicial determination of
the proposed transfer as provided in RCW 11.98.055; and
(g)
Include a form on which the recipient may indicate consent or objection to the
proposed transfer.
(2)
If the trustee receives written consent to the proposed transfer from all
persons entitled to notice, the trustee may transfer the trust assets or place
of administration as provided in the notice. Transfer in accordance with the
notice is a full discharge of the trustee's duties in relation to all property
referred to therein. Any person dealing with the trustee is entitled to rely
on the authority of the trustee to act and is not obliged to inquire into the
validity or propriety of the transfer.
Sec.
620. RCW
11.98.055 and 1985 c 30 s 47 are each amended to read as follows:
(1)
Any trustee, beneficiary, or beneficiary representative may petition the
superior court of the county of the situs of the trust for a transfer of trust
assets or transfer of the place of administration in accordance with ((chapter
11.96 RCW)) sections 301 through 313 of this act.
(2)
At the conclusion of the hearing, if the court finds the requirements of RCW
11.98.045(2) have been satisfied, it may direct the transfer of trust assets or
the place of trust administration on such terms and conditions as it deems
appropriate. The court in its discretion may provide for payment from the
trust of reasonable fees and expenses for any party to the proceeding.
Delivery of trust assets in accordance with the court's order is a full
discharge of the trustee's duties in relation to all transferred property.
Sec.
621. RCW
11.98.080 and 1991 c 6 s 2 are each amended to read as follows:
(1)
Two or more trusts may be consolidated if:
(a)
The trusts so provide; or
(b)
Whether provided in the trusts or not, in accordance with subsection (2) of
this section, if all interested persons consent as provided in subsection
(2)(b) of this section and the requirements of subsection (1)(d) of this
section are satisfied; or
(c)
Whether provided in the trusts or not, in accordance with subsection (3) of
this section if the requirements of subsection (1)(d) of this section are
satisfied;
(d)
Consolidation under subsection (2) or (3) of this section is permitted only if:
(i)
The dispositive provisions of each trust to be consolidated are substantially
similar;
(ii)
Consolidation is not inconsistent with the intent of the trustor with regard to
any trust to be consolidated; and
(iii)
Consolidation would facilitate administration of the trusts and would not
materially impair the interests of the beneficiaries;
(e)
Trusts may be consolidated whether created inter vivos or by will, by the same
or different instruments, by the same or different trustors, whether the
trustees are the same, and regardless of where the trusts were created or
administered.
(2)
The trustees of two or more trusts may consolidate the trusts on such terms and
conditions as appropriate without court approval as provided in ((RCW
11.96.170)) section 402 of this act.
(a)
The trustee shall give written notice of proposed consolidation by personal
service or by certified mail to the beneficiaries of every trust affected by
the consolidation as provided in ((RCW 11.96.100 and 11.96.110)) section
304 of this act and to any trustee of such trusts who does not join in the
notice. The notice shall: (i) State the name and mailing address of the
trustee; (ii) include a copy of the governing instrument of each trust to be
consolidated; (iii) include a statement of assets and liabilities of each trust
to be consolidated, dated within ninety days of the notice; (iv) fully describe
the terms and manner of consolidation; and (v) state the reasons supporting the
requirements of subsection (1)(d) of this section. The notice shall advise the
recipient of the right to petition for a judicial determination of the proposed
consolidation as provided in subsection (3) of this section. The notice shall
include a form on which consent or objection to the proposed consolidation may
be indicated.
(b)
If the trustee receives written consent to the proposed consolidation from all
persons entitled to notice as provided in ((RCW 11.96.100 and 11.96.110))
section 304 of this act or from their representatives, the trustee may
consolidate the trusts as provided in the notice. Any person dealing with the
trustee of the resulting consolidated trust is entitled to rely on the
authority of that trustee to act and is not obliged to inquire into the
validity or propriety of the consolidation under this section.
(3)(a)
Any trustee, beneficiary, or special representative may petition the superior
court of the county in which the principal place of administration of a trust
is located for an order consolidating two or more trusts under ((chapter
11.96 RCW)) sections 301 through 313 of this act. If nonjudicial
consolidation has been commenced pursuant to subsection (2) of this section, a
petition may be filed under this section unless the trustee has received all
necessary consents. The principal place of administration of the trust is the
trustee's usual place of business where the records pertaining to the trust are
kept, or the trustee's residence if the trustee has no such place of business.
(b)
At the conclusion of the hearing, if the court finds that the requirements of
subsection (1)(d) of this section have been satisfied, it may direct
consolidation of two or more trusts on such terms and conditions as
appropriate. The court in its discretion may provide for payment from one or
more of the trusts of reasonable fees and expenses for any party to the
proceeding.
(4)
This section applies to all trusts whenever created.
(5)
For powers of fiduciaries to divide trusts, see RCW 11.108.025.
Sec.
622. RCW
11.98.110 and 1988 c 29 s 8 are each amended to read as follows:
As
used in this section, a trust includes a probate estate, and a trustee includes
a personal representative. The words "trustee" and "as
trustee" mean "personal representative" and "as personal
representative" where this section is being construed in regard to
personal representatives.
Actions
on contracts which have been transferred to a trust and on contracts made by a
trustee, and actions in tort for personal liability incurred by a trustee in
the course of administration may be maintained by the party in whose favor the
cause of action has accrued as follows:
(1)
The plaintiff may sue the trustee in the trustee's representative capacity and
any judgment rendered in favor of the plaintiff is collectible by execution out
of the trust property: PROVIDED, HOWEVER, If the action is in tort, collection
shall not be had from the trust property unless the court determines in the
action that (a) the tort was a common incident of the kind of business activity
in which the trustee or the trustee's predecessor was properly engaged for the
trust; or (b) that, although the tort was not a common incident of such
activity, neither the trustee nor the trustee's predecessor, nor any officer or
employee of the trustee or the trustee's predecessor, was guilty of personal
fault in incurring the liability; or (c) that, although the tort did not fall
within classes (a) or (b) above, it increased the value of the trust property.
If the tort is within classes (a) or (b) above, collection may be had of the
full amount of damage proved, and if the tort is within class (c) above,
collection may be had only to the extent of the increase in the value of the
trust property.
(2)
If the action is on a contract made by the trustee, the trustee may be held
personally liable on the contract, if personal liability is not excluded.
Either the addition by the trustee of the words "trustee" or "as
trustee" after the signature of a trustee to a contract or the transaction
of business as trustee under an assumed name in compliance with chapter 19.80
RCW excludes the trustee from personal liability. If the action is on a
contract transferred to the trust or trustee, subject to any rights therein
vested at time of the transfer, the trustee is personally liable only if he or
she has in writing assumed that liability.
(3)
In any such action against the trustee in the trustee's representative capacity
the plaintiff need not prove that the trustee could have secured reimbursement
from the trust fund if the trustee had paid the plaintiff's claim.
(4)
The trustee may also be held personally liable for any tort committed by him or
her, or by his or her agents or employees in the course of their employments
only if, and to the extent that, damages for the tort are not collectible from
trust property as provided in and pursuant to subsection (1) of this section.
(5)
The procedure for all actions provided in this section is as provided in ((chapter
11.96 RCW)) sections 301 through 313 of this act.
(6)
Nothing in this section shall be construed to change the existing law with
regard to the liability of the trustee of a charitable trust for the torts of
the trustee.
Sec.
623. RCW
11.98.170 and 1991 c 193 s 29 are each amended to read as follows:
(1)
Any life insurance policy or retirement plan payment provision may designate as
beneficiary:
(a)
A trustee named or to be named by will, and immediately after the proving of
the will, the proceeds of such insurance or of such plan designated as payable
to that trustee, in part or in whole, shall be paid to the trustee in
accordance with the beneficiary designation, to be held and disposed of under
the terms of the will governing the testamentary trust; or
(b)
A trustee named or to be named under a trust agreement executed by the insured,
the plan participant, or any other person, and the proceeds of such insurance
or retirement plan designated as payable to such trustee, in part or in whole,
shall be paid to the trustee in accordance with the beneficiary designation, to
be held and disposed of by the trustee as provided in such trust agreement; a
trust is valid even if the only corpus consists of the right of the trustee to
receive as beneficiary insurance or retirement plan proceeds; any such trustee
may also receive assets, other than insurance or retirement plan proceeds, by
testamentary disposition or otherwise and, unless directed otherwise by the
transferor of the assets, shall administer all property of the trust according
to the terms of the trust agreement.
(2)
If no qualified trustee makes claim to the insurance policy or retirement plan
proceeds from the insurance company or the plan administrator within twelve
months after the death of the insured or plan participant, determination of the
proper recipient of the proceeds shall be made pursuant to the judicial or
nonjudicial dispute resolution procedures of chapter ((11.96)) 11.‑-
RCW (sections 101 through 507 of this act), unless prior to the institution
of the judicial procedures, a qualified trustee makes claim to the proceeds,
except that (a) if satisfactory evidence is furnished the insurance company or
plan administrator within the twelve-month period showing that no trustee can
or will qualify to receive such proceeds, payment shall be made to those
otherwise entitled to the proceeds under the terms of the policy or retirement
plan, including the terms of the beneficiary designation except that (b) if
there is any dispute as to the proper recipient of insurance policy or
retirement plan proceeds, the dispute shall be resolved pursuant to the
judicial or nonjudicial resolution procedures in chapter ((11.96)) 11.‑-
RCW (sections 101 through 507 of this act).
(3)
The proceeds of the insurance or retirement plan as collected by the trustee
are not subject to debts of the insured or the plan participant to any greater
extent than if the proceeds were payable to any named beneficiary other than
the personal representative or the estate of the insured or of the plan
participant.
(4)
For purposes of this section the following definitions apply:
(a)
"Plan administrator" means the person upon whom claim must be made in
order for retirement plan proceeds to be paid upon the death of the plan
participant.
(b)
"Retirement plan" means any plan, account, deposit, annuity, or
benefit, other than a life insurance policy, that provides for payment to a
beneficiary designated by the plan participant for whom the plan is
established. The term includes, without limitation, such plans regardless of
source of funding, and, for example, includes pensions, annuities, stock bonus
plans, employee stock ownership plans, profit sharing plans, self-employed
retirement plans, individual retirement accounts, individual retirement
annuities, and retirement bonds, as well as any other retirement plan or
program.
(c)
"Trustee" includes any custodian under chapter 11.114 RCW or any
similar statutory provisions of any other state and the terms "trust
agreement" and "will" refer to the provisions of chapter 11.114
RCW or such similar statutory provisions of any other state.
(5)
Enactment of this section does not invalidate life insurance policy or
retirement plan beneficiary designations executed prior to January 1, 1985,
naming a trustee established by will or by trust agreement.
Sec.
624. RCW
11.98.200 and 1994 c 221 s 65 are each amended to read as follows:
Due
to the inherent conflict of interest that exists between a trustee and a
beneficiary of a trust, unless the terms of a trust refer specifically to RCW
11.98.200 through 11.98.240 and provide expressly to the contrary, the powers
conferred upon a trustee who is a beneficiary of the trust, other than the
trustor as a trustee, cannot be exercised by the trustee to make:
(1)
Discretionary distributions of either principal or income to or for the benefit
of the trustee, except to provide for the trustee's health, education,
maintenance, or support as described under section 2041 or 2514 of the Internal
Revenue Code and the applicable regulations adopted under that section;
(2)
Discretionary allocations of receipts or expenses as between principal and
income, unless the trustee acts in a fiduciary capacity whereby the trustee has
no power to enlarge or shift a beneficial interest except as an incidental
consequence of the discharge of the trustee's fiduciary duties; or
(3)
Discretionary distributions of either principal or income to satisfy a legal
obligation of the trustee.
A
proscribed power under this section that is conferred upon two or more trustees
may be exercised by the trustees that are not disqualified under this section.
If there is no trustee qualified to exercise a power proscribed under this
section, a person described in ((RCW 11.96.070)) section 301 of this
act who is entitled to seek judicial proceedings with respect to a trust
may apply to a court of competent jurisdiction to appoint another trustee who
would not be disqualified, and the power may be exercised by another trustee
appointed by the court. Alternatively, another trustee who would not be
disqualified may be appointed in accordance with the provisions of the trust
instrument if the procedures are provided, or as set forth in RCW 11.98.039 as
if the office of trustee were vacant, or by a nonjudicial dispute resolution
agreement under ((RCW 11.96.170)) section 402 of this act.
Sec.
625. RCW
11.98.220 and 1993 c 339 s 4 are each amended to read as follows:
RCW 11.98.200 through 11.98.240 do not raise any inference that the
law of this state prior to July 25, 1993, was different than under RCW
11.98.200 through 11.98.240. Further, RCW 11.98.200 through 11.98.240 do not
raise an inference that prior to July 25, 1993, a trustee's exercise or failure
to exercise a power described in RCW 11.98.200 through 11.98.240 was not
subject to review by a court of competent jurisdiction for abuse of discretion
or breach of fiduciary duty under chapter ((11.96)) 11.‑-
RCW (sections 101 through 507 of this act) or other applicable law.
Following July 25, 1993, the power of judicial review continues to apply.
Sec.
626. RCW
11.98.240 and 1997 c 252 s 76 are each amended to read as follows:
(1)(a)
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)
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)) section 301 of this act 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))) section
104(4) of this act.
(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)) section 402 of this act.
Sec.
627. RCW
11.106.040 and 1985 c 30 s 98 are each amended to read as follows:
((Upon
the petition under chapter 11.96 RCW of any settlor or of any beneficiary of
such a trust after due notice as provided in chapter 11.96 RCW to the trustee))
At any time after the later of one year from the inception of the trust or
one year after the day on which a report was last filed, any settlor or
beneficiary of a trust may file a petition under section 301 of this act with
the superior court in the county where the trustee or one of the trustees
resides ((may)) asking the court to direct the trustee or
trustees to file in the court an account ((at any time after one year from
the day on which such a report was last filed, or if none, then after one year
from the inception of the trust)). At the hearing on such petition the
court may order the trustee to file an account for good cause shown.
Sec.
628. RCW
11.106.050 and 1985 c 30 s 99 are each amended to read as follows:
When
any account has been filed pursuant to RCW 11.106.030 or 11.106.040, the clerk
of the court where filed shall fix a return day therefor as provided in ((RCW
11.96.090)) section 303(4) of this act and issue a notice. The
notice shall state the time and place for the return date, the name or names of
the trustee or trustees who have filed the account, that the account has been
filed, that the court is asked to settle the account, and that any objections
or exceptions to the account must be filed with the clerk of the court on or
before the return date. The notice shall be given as provided for notices
under ((RCW 11.96.100 or 11.96.110)) section 304 of this act.
Sec.
629. RCW
11.106.060 and 1985 c 30 s 100 are each amended to read as follows:
Upon
or before the return date any beneficiary of the trust may file the
beneficiary's written objections or exceptions to the account filed or to any
action of the trustee or trustees set forth in the account. The court shall
appoint guardians ad litem as provided in ((RCW 11.96.180)) section
309 of this act and the court may allow representatives to be appointed
under ((RCW 11.96.110 and 11.96.170)) section 305 or 405 of this act
to represent the persons listed in those sections.
Sec.
630. RCW
11.108.040 and 1985 c 30 s 109 are each amended to read as follows:
(1)
If a testator, under the terms of a governing instrument executed prior to
September 12, 1981, leaves outright to or in trust for the benefit of that
testator's surviving spouse an amount or fractional share of that testator's
estate or a trust estate expressed in terms of one-half of that testator's
federal adjusted gross estate, or by any other reference to the maximum estate
tax marital deduction allowable under federal law without referring, either in
that governing instrument or in any codicil or amendment thereto, specifically
to the unlimited federal estate tax marital deduction enacted as part of the
economic recovery tax act of 1981, such expression shall, unless subsection (2)
or (3) of this section applies, be construed as referring to the unlimited
federal estate tax marital deduction, and also as expressing such amount or
fractional share, as the case may be, in terms of the minimum amount which will
cause the least possible amount of federal estate tax to be payable as a result
of the testator's death, taking into account other property passing to the
surviving spouse that qualifies for the marital deduction, at the value at
which it qualifies, and also taking into account all credits against the
federal estate tax, but only to the extent that the use of these credits do not
increase the death tax payable.
(2)
If this subsection applies to a testator, such expression shall be construed as
referring to the estate tax marital deduction allowed by federal law
immediately prior to the enactment of the unlimited estate tax marital
deduction as a part of the economic recovery tax act of 1981. This subsection
applies if subsection (3) of this section does not apply and:
(a)
The application of this subsection to the testator will not cause an increase
in the federal estate taxes payable as a result of the testator's death over
the amount of such taxes which would be payable if subsection (1) of this
section applied; or
(b)
The testator is survived by a blood or adopted descendant who is not also a blood
or adopted descendant of the testator's surviving spouse, unless such person or
persons have entered into an agreement under ((the dispute resolution
procedures in chapter 11.96 RCW)) section 402 of this act; or
(c)
The testator amended the governing instrument containing such expression after
December 31, 1981, without amending such expression to refer expressly to the
unlimited federal estate tax marital deduction.
(3)
If the governing instrument contains language expressly stating that federal
law of a particular time prior to January 1, 1982, is to govern the
construction or interpretation of such expression, the expression shall be
construed as referring to the marital deduction allowable under federal law in
force and effect as of that time.
(4)
If subsection (2) or (3) of this section applies to the testator, the
expression shall not be construed as referring to any property that the
personal representative of the testator's estate or other authorized fiduciary
elects to qualify for the federal estate tax marital deduction as qualified
terminable interest property. If subsection (1) of this section applies to the
testator, any provision shall be construed as referring to any property that
the personal representative of the testator's estate or other authorized
fiduciary elects to qualify for the federal estate tax marital deduction as
qualified terminable interest property, but only to the extent that such
construction does not cause the amount or fractional share left to or for the
benefit of the surviving spouse to be reduced below the amount that would pass
under subsection (2) or (3) of this section, whichever is applicable.
(5)
This section is effective with respect to testators dying after December 31,
1982.
Sec.
631. RCW
11.108.900 and 1985 c 30 s 112 are each amended to read as follows:
This
chapter applies to all estates, trusts, and governing instruments in existence
on or any time after March 7, 1984, and to all proceedings with respect thereto
after that date, whether the proceedings commenced before or after that date,
and including distributions made after that date. This chapter shall not apply
to any governing instrument the terms of which expressly or by necessary implication
make this chapter inapplicable. The judicial and nonjudicial dispute
resolution procedures of chapter ((11.96)) 11.‑- RCW (sections
101 through 507 of this act) apply to this chapter.
Sec.
632. RCW
11.110.120 and 1985 c 30 s 125 are each amended to read as follows:
The
attorney general may institute appropriate proceedings to secure compliance
with this chapter and to secure the proper administration of any trust or other
relationship to which this chapter applies. He shall be notified of all
judicial proceedings involving or affecting the charitable trust or its
administration in which, at common law, he is a necessary or proper party as
representative of the public beneficiaries. The notification shall be given as
provided in ((RCW 11.96.100)) section 304 of this act, but this
notice requirement may be waived at the discretion of the attorney general.
The powers and duties of the attorney general provided in this chapter are in
addition to his existing powers and duties, and are not to be construed to
limit or to restrict the exercise of the powers or the performance of the
duties of the attorney general or of any prosecuting attorney which they may
exercise or perform under any other provision of law. Except as provided
herein, nothing in this chapter shall impair or restrict the jurisdiction of
any court with respect to any of the matters covered by it.
Sec.
633. RCW
11.114.020 and 1991 c 193 s 2 are each amended to read as follows:
(1)
This chapter applies to a transfer that refers to this chapter in the
designation under RCW 11.114.090(1) by which the transfer is made if at the
time of the transfer, the transferor, the minor, or the custodian is a resident
of this state or the custodial property is located in this state. The
custodianship so created remains subject to this chapter despite a subsequent
change in residence of a transferor, the minor, or the custodian, or the
removal of custodial property from this state.
(2)
A person designated as custodian under this chapter is subject to personal
jurisdiction in this state with respect to any matter relating to the
custodianship.
(3)
A transfer that purports to be made and which is valid under the uniform
transfers to minors act, the uniform gifts to minors act, or a substantially
similar act of another state is governed by the law of the designated state and
may be executed and is enforceable in this state if at the time of the
transfer, the transferor, the minor, or the custodian is a resident of the
designated state or the custodial property is located in the designated state.
(4)
A matter under this chapter subject to court determination is governed by the
procedures provided in ((chapter 11.96 RCW)) sections 301 through 313
of this act. However, no guardian ad litem is required for the minor,
except under RCW 11.114.190(1), in the case of a petition by a unrepresented
minor under the age of fourteen years.
Sec.
634. RCW
36.18.012 and 1996 c 211 s 1 are each amended to read as follows:
(1)
Revenue collected under this section is subject to division with the state for
deposit in the public safety and education account under RCW 36.18.025.
(2)
The party filing a transcript or abstract of judgment or verdict from a United
States court held in this state, or from the superior court of another county
or from a district court in the county of issuance, shall pay at the time of
filing a fee of fifteen dollars.
(3)
For the filing of a tax warrant by the department of revenue of the state of
Washington, a fee of five dollars must be paid.
(4)
The clerk shall collect a fee of twenty dollars for: Filing a paper not
related to or a part of a proceeding, civil or criminal, or a probate matter,
required or permitted to be filed in the clerk's office for which no other
charge is provided by law.
(5)
If the defendant serves or files an answer to an unlawful detainer complaint
under chapter 59.18 or 59.20 RCW, the plaintiff shall pay before proceeding
with the unlawful detainer action eighty dollars.
(6)
For a restrictive covenant for filing a petition to strike discriminatory
provisions in real estate under RCW 49.60.227 a fee of twenty dollars must be charged.
(7)
A fee of twenty dollars must be charged for filing a will only, when no probate
of the will is contemplated.
(8)
A fee of two dollars must be charged for filing a petition, written agreement,
or written memorandum in a nonjudicial probate dispute under ((RCW 11.96.170))
section 402 of this act.
(9)
A fee of thirty-five dollars must be charged for filing a petition regarding a
common law lien under RCW 60.70.060.
(10)
For certification of delinquent taxes by a county treasurer under RCW 84.64.190,
a fee of five dollars must be charged.
Sec.
635. RCW
36.18.020 and 1996 c 211 s 2 are each amended to read as follows:
(1)
Revenue collected under this section is subject to division with the state
public safety and education account under RCW 36.18.025 and with the county or
regional law library fund under RCW 27.24.070.
(2)
Clerks of superior courts shall collect the following fees for their official
services:
(a)
The party filing the first or initial paper in any civil action, including, but
not limited to an action for restitution, adoption, or change of name, shall
pay, at the time the paper is filed, a fee of one hundred ten dollars except,
in an unlawful detainer action under chapter 59.18 or 59.20 RCW for which the
plaintiff shall pay a case initiating filing fee of thirty dollars, or in
proceedings filed under RCW 28A.225.030 alleging a violation of the compulsory
attendance laws where the petitioner shall not pay a filing fee. The thirty
dollar filing fee under this subsection for an unlawful detainer action shall
not include an order to show cause or any other order or judgment except a
default order or default judgment in an unlawful detainer action.
(b)
Any party, except a defendant in a criminal case, filing the first or initial
paper on an appeal from a court of limited jurisdiction or any party on any
civil appeal, shall pay, when the paper is filed, a fee of one hundred ten
dollars.
(c)
For filing of a petition for judicial review as required under RCW 34.05.514 a
filing fee of one hundred ten dollars.
(d)
For filing of a petition for unlawful harassment under RCW 10.14.040 a filing
fee of one hundred ten dollars.
(e)
For filing the notice of debt due for the compensation of a crime victim under
RCW 7.68.120(2)(a) a fee of one hundred ten dollars.
(f)
In probate proceedings, the party instituting such proceedings, shall pay at
the time of filing the first paper therein, a fee of one hundred ten dollars.
(g)
For filing any petition to contest a will admitted to probate or a petition to
admit a will which has been rejected, or a petition objecting to a written
agreement or memorandum as provided in ((RCW 11.96.170)) section 402
of this act, there shall be paid a fee of one hundred ten dollars.
(h)
Upon conviction or plea of guilty, upon failure to prosecute an appeal from a
court of limited jurisdiction as provided by law, or upon affirmance of a
conviction by a court of limited jurisdiction, a defendant in a criminal case
shall be liable for a fee of one hundred ten dollars.
(i)
With the exception of demands for jury hereafter made and garnishments
hereafter issued, civil actions and probate proceedings filed prior to
midnight, July 1, 1972, shall be completed and governed by the fee schedule in
effect as of January 1, 1972: PROVIDED, That no fee shall be assessed if an
order of dismissal on the clerk's record be filed as provided by rule of the
supreme court.
(3)
No fee shall be collected when a petition for relinquishment of parental rights
is filed pursuant to RCW 26.33.080 or for forms and instructional brochures
provided under RCW 26.50.030.
Sec.
636. RCW
83.100.180 and 1988 c 64 s 17 are each amended to read as follows:
At
any time prior to the making of an order under RCW 83.100.170, any person
having an interest in property subject to the tax may file objections in
writing with the clerk of the superior court and serve a copy thereof upon the
department, and the same shall be noted for trial before the court and a
hearing had thereon as provided for hearings in ((chapter 11.96 RCW)) sections
301 through 313 of this act.
NEW
SECTION. Sec. 637. The
following acts or parts of acts are each repealed:
(1) RCW
11.16.060 and 1965 c 145 s 11.16.060;
(2) RCW
11.16.070 and 1965 c 145 s 11.16.070;
(3) RCW
11.16.082 and 1965 c 145 s 11.16.082;
(4) RCW
11.16.083 and 1996 c 249 s 7, 1977 ex.s. c 234 s 1, & 1965 c
145 s 11.16.083;
(5) RCW
11.96.009 and 1994 c 221 s 51 & 1985 c 31 s 2;
(6) RCW
11.96.020 and 1994 c 221 s 52 & 1985 c 31 s 3;
(7) RCW
11.96.030 and 1985 c 31 s 4;
(8) RCW
11.96.040 and 1985 c 31 s 5;
(9) RCW
11.96.050 and 1994 c 221 s 53 & 1985 c 31 s 6;
(10) RCW
11.96.060 and 1994 c 221 s 54 & 1985 c 31 s 7;
(11) RCW
11.96.070 and 1997 c 252 s 77, 1994 c 221 s 55, 1990 c 179 s 1,
1988 c 29 s 6, & 1985 c 31 s 8;
(12) RCW
11.96.080 and 1994 c 221 s 56 & 1985 c 31 s 9;
(13) RCW
11.96.090 and 1994 c 221 s 57 & 1985 c 31 s 10;
(14) RCW
11.96.100 and 1994 c 221 s 58 & 1985 c 31 s 11;
(15) RCW
11.96.110 and 1994 c 221 s 59 & 1985 c 31 s 12;
(16) RCW
11.96.120 and 1985 c 31 s 13;
(17) RCW
11.96.130 and 1994 c 221 s 60 & 1985 c 31 s 14;
(18) RCW
11.96.140 and 1994 c 221 s 61 & 1985 c 31 s 15;
(19) RCW
11.96.150 and 1985 c 31 s 16;
(20) RCW
11.96.160 and 1994 c 221 s 62, 1988 c 202 s 19, & 1985 c 31 s
17;
(21) RCW
11.96.170 and 1994 c 221 s 63, 1988 c 29 s 7, & 1985 c 31 s
18;
(22) RCW
11.96.180 and 1994 c 221 s 64 & 1985 c 31 s 19;
(23) RCW
11.96.900 and 1985 c 31 s 1; and
(24) RCW
11.96.901 and 1985 c 31 s 20.
PART
VII
MISCELLANEOUS‑-EFFECTIVE
DATES
NEW
SECTION. Sec. 701. Part
headings and captions used in this act are not any part of the law.
NEW
SECTION. Sec. 702.
Sections 101 through 507 of this act constitute a new chapter in Title 11 RCW.
NEW
SECTION. Sec. 703. This
act takes effect January 1, 2000.
NEW
SECTION. Sec. 704.
Section 405 of this act is remedial in nature and applies to all actions taken
by special representatives from January 1, 1985, and thereafter.
