Probate and Trust Litigation
My relative had a Will, but I think they were not competent when they signed it. What can I do?
A family member or interested party may have legal "standing" to contest a Will, and any will contest must be filed within four months of the opening of probate. Probate is the process through which the Will is submitted to the court for review and appointment of a Personal Representative (also known as Executor or Administrator) to administer the estate. If a deceased person's competency to execute a will is contested, the court will consider facts to assess the deceased person's "testamentary capacity." A person has "testamentary capacity" -- and is "competent" to execute a Will -- if he or she 1) understands that a Will is a document that gives instructions as to distribution of your assets after your death; 2) has an understanding of nature and extent of the property he or she owns; and 3) knows who are the "natural objects of his/her bounty". The "natural objects of one's bounty" are generally the spouse, children, grandchildren, etc. A person does not have to leave his or her estate to the "natural objects of his/her bounty" but they need to show understanding of who those people are, and that they've made a conscious choice to exclude them and to leave the estate to someone else.
I am the beneficiary of an estate. What should I do if the Personal Representative is taking a long time, or is not communicating with me?
A Personal Representative has a "fiduciary duty" to act in the best interests of the estate and ALL of the heirs/beneficiaries. A beneficiary can file a "Request for Special Notice" with the court which then obligates the Personal Representative to advise that beneficiary of the actions that he/she takes on behalf of the estate, such as: selling real estate; distributing property; paying legal fees, etc. A Personal Representative is required to conduct an inventory and appraisal of all estate assets within three months of the commencement of the probate. An heir may request in writing a copy of that inventory and appraisal, and the Personal Representative must then provide it to the heir within ten days of his/her request. A Personal Representative has discretion as to the timing of distributions to heirs, and must settle all debts of the estate -- including taxes -- prior to the final distribution to heirs. Often a Personal Representative may need to sell real estate of the deceased, and there may be delays due to economic conditions and slow-downs in the housing market. However, the Personal Representative continues to owe an equal duty to all heirs of the estate, and if he/she is refusing to communicate with an heir, then the heir has the right to seek court intervention. A court has the authority to order a Personal Representative to act, and may remove a Personal Representative if he/she fails in exercising his/her duties. For more detail, see the section on TEDRA below.
What does "TEDRA" mean?
TEDRA is the Trusts and Estates Dispute Resolution Act of Washington. This statute gives the court very broad authority to resolve trust and estate disputes in an expedited and efficient manner. An interested party may file a TEDRA petition with the court identifying the disputes and seeking relief. The court may then resolve some or all of the issues at the initial hearing; order mediation or arbitration; or set the matter for trial. Mediation and arbitration are forms of Alternate Dispute Resolution, and are "alternatives" to trial. In mediation, the parties negotiate toward a resolution with the assistance of a trained mediator. In arbitration, the parties submit their facts and argument to an arbitrator who then issues a decision as to the resolution of the disputed issues. If a matter is set for trial under TEDRA, it is given an expedited schedule.
