How to Probate a Washington Descendant's Estate ---
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Appointing a Personal Representative to Bring a Wrongful Death Action

Upon a party’s death, the proper party to bring and maintain or to defend a legal action in Decedent’s name or on Decedent’s behalf is Decedent’s Personal Representative.  RCW 4.20.046  Beal v. City of Seattle, 134 Wn.2d 769 (1998); Rose v. Fritz, 104 Wn. App. 116 (2001).  Consequently, if Decedent will become a party to lawsuit, such as a wrongful death action, you will need to obtain Letters in order to bring and maintain the lawsuit — meaning that a probate will be required in order to appoint you Personal Representative.  RCW 4.20.010

Several practical problems, however, arise in connection with bringing a wrongful death action on a Decedent’s behalf:

  • Insolvent estate: Often Decedent’s estates are insolvent, meaning that here, they have no assets other than their claim for wrongful death.  The problem with this is that in order for a Personal Representative to bring and maintain (or to defend) any legal action, he/she must obtain prior Court approval — unless he/she has Nonintervention Powers.  And for the Personal Representative to be granted Nonintervention Powers, the estate must be solvent — which insolvent estates, by definition, are not.  RCW 11.68.011(2)

Consequently, the Personal Representative of an insolvent estate must obtain an Order authorizing the filing of the wrongful death action before the action may be filed.

Petition for Order Authorizing Commencement & Maintenance of Legal Action form.

  • “Qualifying” for Letters: It is not enough for you to have been appointed by the Court as Personal Representative (ie, for the Judge to have signed the Order Appointing Personal Representative) for you to have authority to act as Personal Representative — you must be “qualified” to act — in other words, you must at least have done everything required in order to obtain your Letters (and possibly even have obtained them).  Williams-Moore v. Estate of Shaw, 122 Wn. App. 871 (2004).

Consequently, you must obtain and file any Bond imposed, file your Oath of Personal Representative, and probably even actually obtain your Letters before the action may be filed.

  • Statute of Limitations: All too often people do not wake up to the possibility that they might be eligible for legal recovery until years after the incident that resulted in their potential right to recover.  The problem is that all this while, the statute of limitations is running on their right, and if they do not timely file an action for recovery, their right will be barred.  In Washington, the statute of limitations for a wrongful death action is three years.  RCW 4.16.080(2)

Consequently, you must obtain your Letters and file the action within three years of Decedent’s death — or your right will be barred.

Legal Horror Story:  In Williams-Moore v. Estate of Shaw, cited above, the purported Personal Representative obtained appointment but never bothered to obtain and file the Bond imposed, file her Oath of Personal Representative, or actually obtain her Letters.  Acting as Decedent’s Personal Representative, she accepted on the estate’s behalf her own service of process regarding a personal injury lawsuit she had filed in her individual capacity against Decedent’s estate (she had been injured when Decedent’s car ran into a Metro bus that she was driving).  Several months later, she was removed as Personal Representative, and the successor PR affirmatively defended that when she accepted her service of process on behalf of the estate, she was not qualified as Decedent’s Personal Representative.  The Court agreed and dismissed her lawsuit.  By this time, however, the 3-year statute of limitations had run on her claim, and it was now barred.  Don’t make this mistake:

Obtain your Letters before acting as Personal Representative.