Salmon Creek Law Offices

Probate Dispute Attorney Vancouver WA

Most probate disputes arise from the executor not fulfilling his or her fiduciary duties.

There are numerous fiduciary duties that an exeutor or personal representative must comply with. A Washington case that illustrates the duties of a personal representative is the Estate of Drinkwater, 22 Wn. App. 26 (1978). The responsibilities individually discussed in several cases as summarized in Drinkwater are as follows (note that the term trustee applies equally to a personal representative or a Guardian): 1) Trustees and guardians must conform to stringent standards of responsibility; 2) Trustees must administer the trust solely in the interest of such beneficiary with undivided loyalty to the trust; 3) Trustees are not allowed to make a profit or derive any benefit or advantage out of the trust; 4) Trustees are bound to the universal rule that a trustee must do that which will best serve the interests of the trust beneficiaries (his good faith is not enough); 5) Trustees cannot set up a claim against the trust estate; 6) Trustees cannot set up a title to the trust property in himself. In summary, a personal representative may not do anything that is not entirely in the best interest of the devisees or heirs of the estate and may not personally benefit from the estate at the expense of the devisees or heirs.

Who ensures the personal representative is acting appropriately? I often tell my clients that there are no “estate police” meaning the only people overseeing the actions of the personal representative are the heirs of the estate. If the heirs of the estate do not closely monitor the actions of the personal representative, the personal representative could do something that is not appropriate without the heirs ever finding out. There are specific provisions in Washington law that allow the heirs to request notice when the personal representative takes specific actions like distributing money, paying themselves as the personal representative or paying attorney fees, among other things. It is a good idea for heirs in every estate to request this notice. Heirs may also request an accounting from the personal representative. Washington probate law only requires a brief summary of attorney fees, personal representative fees, appraiser fees and accountant fees to close a non-court supervised estate. The heirs should also request a full accounting of all of the financial transactions undertaken by the personal representative. There is no other way to ensure the personal representative has upheld his or her fiduciary duties.

If the personal representative has not upheld his or her fiduciary duties, the heirs of the estate can have the personal representative removed. If it is in the best interest of the estate to have the personal representative removed, the court will remove the personal representative. A later article will discuss how to remove the personal representative and what specific things the court considers in removal.

In summary, as an heir of an estate, it is your responsibility to ensure that the personal representative upholds his or her fiduciary duties — no one else will. If you discover that a personal representative has not upheld his or her fiduciary duties, you may dispute the estate and have the personal representative removed if it is appropriate to do so.

Attorney Trent Kunz, Salmon Creek Law Offices  (360) 576-5322