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Moser Law

TEDRA: Chapter 11.96A RCW

Trust and Estate Dispute Resolution ActLaw & Practice

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Moser Law

Advocates Law Groupwww.advocateslg.com

TEDRA Law & PracticeTom Moser

December 6, 2012

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Introduction

Recent legislation 5 key elements of

TEDRA The architecture of

TEDRA How to commence

a TEDRA action Petition & Summons

Answer & Counterclaims

Alternative Dispute Resolution Mediation Arbitration

Initial Hearing Statute of

limitations Special

representative Cy Près Practice tips More . . .

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Legislative Amendments

TEDRA was amended by SHB 1051 in the 2011 legislature with revisions that became effective January 2012: Trust situs Venue for proceedings Notice by electronic transmission Statute of limitations Correction of mistakes in documents Cy près doctrine

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Architecture of TEDRA

TEDRA has5 key elements

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Architecture of TEDRA

Power RCW 11.96A.020

Matter RCW

11.96A.030(2)

Party RCW

11.96A.030(5)

Jurisdiction RCW 11.96A.040

Purpose RCW

11.96A.010

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Look first to Purpose of the Act

Purpose RCW

11.96A.010

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The Statute Purpose 2xThe overall purpose of this chapter is . . . for the resolution of disputes and other matters involving trusts and estates . . . The provisions are intended to provide nonjudicial methods for the resolution of matters, such as mediation, arbitration, and agreement. This chapter also provides for judicial resolution of disputes if other methods are unsuccessful.

RCW 11.96A.010

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It is intended that the adoption of [the 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. RCW 11.96A.260

The Statute Purpose

Matter is defined in RCW

11.96A.030

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TEDRA gives Power to courts

Power RCW 11.96A.020

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Plenary Power of Courts

(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) . . . estates . . . incapacitated, missing, and deceased persons, including matters involving nonprobate assets and powers of attorney . . .; and

(b) All trusts and trust matters.

RCW 11.96A.020

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Plenary Power of Courts

(2) If this title should . . . be inapplicable . . . to . . . the matters listed in subsection (1) . . . the court nevertheless has full power and authority to proceed . . . all to the end that the matters be expeditiously administered and settled by the court.

RCW 11.96A.020

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Plenary Power of Courts

“The Act's grant of plenary powers to the trial court lends additional support to the trial court's authority to appoint [the] trustee. The legislature provided that it intended courts to have ‘full and ample power and authority’ to administer and settle all trusts and trust matters under the Act.”

In re Irrevocable Trust of McKean, 144 Wash. App. 333, 343, 183 P.3d 317, 322 (2008)

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Power of Courts

When considering power of the court to act in a TEDRA consider the court rules.

Practice

Tip

TEDRA is a “special proceeding”

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Court Rules & TEDRA

CR 1 states that generally the civil rules “govern the procedure in the superior court . . . with the exceptions stated in rule 81.”

CR 81 states that rules are not applicable “where inconsistent with rules or statutes applicable to special proceedings.”The point is . . .

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Special Proceeding

A judicial proceeding under TEDRA is a special proceeding under the civil rules. RCW 11.96A.090(1).

Therefore, Superior Court Civil Rules and other procedural rules of court apply to judicial proceedings under TEDRA only to the extent that they are consistent with chapter 11.96A RCW,

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Jurisdiction & Venue

Jurisdiction RCW 11.96A.040

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Jurisdiction

(1) The superior court . . . has original subject matter jurisdiction over the probate of wills and the administration of estates . . . 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.

RCW 11.96A.040

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Jurisdiction & Venue

(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.

RCW 11.96A.040(4)

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Venue for a probate may be in any county. In case of a challenge, priority is given first to the county of the Decedent's residence, then to any county in which part of the probate assets or the nonprobate assets might be located, and finally to the county in which the Decedent died.

26B Wash. Prac., Probate Law and Practice § 3.12 (citing RCW 11.96A.050 & .060)

Venue Priority

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In Personam or In Rem Jurisdiction

Probate proceedings are in rem: “ ‘It has been uniformly ruled . . . that proceedings to probate or to set aside the probate of wills are proceedings in rem and not in personam; that such proceedings are exclusively to determine the status of the res, and not the rights of the parties.’

In re Estate of Black, 116 Wash. App. 492, 499, 66 P.3d 678, 682 (2003)

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In Personam or In Rem Jurisdiction

The service of the petition and summons gives the court in personam jurisdiction over the parties.

The service provides notice which implicates the due process rights of a party.

Be aware of likely distinction between RCW 11.96A.100 and .110. Notice by mail and electronic

transmission.

Practice

Tip

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In Personam or In Rem Jurisdiction

RCW 11.96A.110 was amended to allow notice by electronic transmission. The issue is whether notice in §.110 is the same as in §.100: Notice of judicial proceedings in §.110

may be by mail or electronic transmission;

Notice by summons in §.100 seems to require personal service.

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Definition of Matters

Matter RCW 11.96A.030(2)

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Matters: RCW 11.96A.030(2)

"Matter" includes any issue, question, or dispute involving:

(a) The determination of . . .(b) The direction of . . .(c) The determination of . . .(d) The grant to . . .(e) An action or proceeding . . .(f) The amendment, reformation, or

conformation of . . .

The list of “matters”

is extensive

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Other “Matters” Within TEDRA

a. Personal Representative Unfit to Serve (RCW 11.36.010)

b. Revocation of Letters (RCW 11.28.250 and RCW 11.68.070)

c. Common Law Breach of Fiduciary Claims d. Will Contests (RCW 11.24.010)

e. Breach of an Oral Contract to Devise f. Omitted Spouse (RCW 11.12.095)

g. Omitted Child (RCW 11.12.091)

26B Wash. Prac., Probate Law and Practice § 2.33

More

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Other “Matters” Within TEDRA

h. Creditor Claims (RCW 11.40.080)

i. Breach of the Instrument j. Negligence k. Conversion l. Unjust Enrichment m. Inventory and Appraisement (RCW 11.44.015)

n. Tortious Interference with the Right to Inheritance

26B Wash. Prac., Probate Law and Practice § 2.33

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Definition of Party in TEDRA

Party RCW 11.96A.030(5)

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Party: RCW 11.96A.030(5)

"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;

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Party: RCW 11.96A.030(5)

(e) A beneficiary, including devisees, legatees, and trust beneficiaries;(f) The surviving spouse or surviving domestic partner 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 . . .

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Party: RCW 11.96A.030(5)

(k) Any duly appointed and acting legal representative of a party . . . ;(l) Where applicable, the virtual representative of any person described in this subsection . . . ;(m) Any notice agent, resident agent, or a qualified person, . . . ; 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, . . . .

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Commencing a TEDRA Action

Where do I start? How is an action commenced? If there is already a probate pending,

do I file a new case or in the probate?

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Petition & Summons

Unless rules of court require or this title provides otherwise, or unless a court orders otherwise:(1) A judicial proceeding under RCW 11.96A.090 is to be commenced by filing a petition with the court;

RCW 11.96A.100 We need to come back to this statute

And to this

word!

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Petition & Summons

(2) A summons must be served in accordance with this chapter and, where not inconsistent with these rules, the procedural rules of court, however, . . .

RCW 11.96A.100

We will read the rest of this section carefully

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Petition & Summons

(2) . . . if the proceeding is commenced as an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset, notice must be provided by summons only with respect to those parties who were not already parties to the existing judicial proceedings;

RCW 11.96A.100Now go back toRCW 11.96A.090

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Where Do I Start?

(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.

RCW 11.96A.090

A TEDRA action may be filed in an existing probate

or trust litigation.

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Where Do I Start?

(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.

RCW 11.96A.090

Let the judge figure out whether to consolidate or separate the action.

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The Petition

Filing within the probate:

Petitioner is an heir and the PR is respondent.

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The Petition

Filing as an original action:The Estate is

petitioner & respondent was an heirs who was holding assets of the Estate.

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The Petition

Filing as trust litigation:

The Trust & a co-trustee are petitioners & the other co-trustees are respondents

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Invoking Jurisdiction

A petition may be filed to commence an action, but is not required to invoke the court’s jurisdiction. See In re Estate of Dubois, unpublished decision, Division III. Widow with nonintervention powers filed

and served a declaration of completion of probate;

Sons of deceased filed notice of mediation within 30 days, but no petition;

PR ignored the notice, closed the estate and made distribution to the sons.

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Invoking Jurisdiction

Sons moved to reopen the probate; PR responded that sons failed to

follow RCW 11.68.110(2) requiring a petition to be filed to challenge automatic closure;

Trial court agreed and denied the motion;

Sons appeal and Court of Appeals reversed, holding that notice of mediation was sufficient under TEDRA;

Reversed

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Invoking Jurisdiction

“A ‘judicial proceeding’ under TEDRA ‘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.’ RCW 11.96A.090(2). The sons here commenced their mediation action incidental to the probate. No petition was needed.”

In re Estate of Dubois, 146 Wash. App. 1052 (2008)

Notice:This is an

unreported case

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Summons

(3) The summons need only contain the following language or substantially similar language:

RCW 11.96A.100(3)

The text of the statute is not the same text as a

normal summons.

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Summons

RCW 11.96A.100(3)

Practice

Tip

Don’t let your otherwise competent legal assistant draft the summons from

your CR 4 Summons form!

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Answer to Petition & Counterclaims

Answer and any counterclaim must be filed at least 5 days before the initial hearing;

Replies to counterclaim must be filed at least 2 days before the hearing;

Since notice of an initial hearing requires only 20 days, things may move quickly!

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Answer to Petition & Counterclaims

Answer must include all defenses, including challenge to subject matter jurisdiction.

In re Estate of Palmer involved a TEDRA petition filed to challenge actions taken by respondent when she was attorney-in-fact for the decedent. Respondent’s Answer did not raise

defenses that she later raised on last day of trial.

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Answer to Petition & Counterclaims

Trial court denied motions to dismiss that were untimely and Court of Appeals affirmed:

“We hold that [respondent] waived the time bar defense in RCW 11.11.070(3) by failing to plead it in her answer or in a CR 12 motion.”

In re Estate of Palmer, 145 Wash. App. 249, 258-59, 187 P.3d 758, 763 (2008)

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Mediation

A party may serve a “Notice of Mediation” and give notice of a hearing to set mediation. RCW 11.96A.300 The Notice may include a list of

proposed mediators. The Notice must state the nature of the

matters to be mediated. Parties must object to mediation within

20 days of the scheduled hearing.

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Mediation

If the court orders mediation the order is not subject to appeal or revision.

If the court denies the request for mediation, the court may: Decide the issues outlined in the Notice

or Petition; or Set the matter for arbitration; or Directing other judicial proceedings.

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Mediation

A qualified mediator must be: An attorney having at least five years of

experience in estate and trust matters, or

An individual with special skill or training in the administration of trusts and estates, or

An individual with special skill or training as a mediator.

May not have an interest in the subject matter and may not be related to a party.

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Mediation

The mediation date may be set by the court;

The mediation must be conducted for not less than 3 hours, unless resolve earlier;

Any resolution must be evidenced by a nonjudicial dispute resolution agreement under RCW 11.96A.220.

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Mediation

Cost of mediation shall be borne equally by the parties and set forth in the written agreement.

A binding agreement process is at RCW 11.96A.210 to .250: Must be signed by all parties; Is binding and conclusive on all parties; The agreement or memorandum of

agreement may be filed with the court.

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Mediation

If the agreement is filed it is equivalent to a final court order binding on all persons interested in the estate or trust.

If a special representative is appointed, the process for court approval of a binding agreement is at RCW 11.96A.230 & .240.

The special representative appointment process is at 11.96A.250.

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Arbitration

A party may commence arbitration by serving written notice of arbitration on all other parties.

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 the parties agree that mediation was not

applicable, any party may file and serve a “Notice of Arbitration.”

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Arbitration

Arbitration is available only if: A party has first petitioned for mediation and

such mediation has been concluded; The court has determined that mediation is not

required and has not ordered that the matter be disposed of in some other manner;

All of the parties have agreed not to use the mediation procedures; or

The court has ordered that the matter must be submitted to arbitration. RCW 11.96A.310

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Arbitration

The “Notice of Arbitration” may include a list of proposed arbitrators.

A party may file an objection within 20 days after service of the Notice of Arbitration by filing a “petition”.

A hearing must be held on the “petition” within 20 days after filing.

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Arbitration

The party objecting must give ten days notice of the hearing to all parties;

An order sending the matter to arbitration shall not be subject to appeal or revision.

If the court denies the request for arbitration, the court may: Decide the issues outlined in the Notice

or Petition; or Directing other judicial proceedings.

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Initial Hearing

The Initial Hearing is unique to TEDRA proceedings. RCW 11.96A.100

The answer to the petition must be served and filed at least five days before the date of the initial hearing, and replies to counterclaims and cross-claims must be served and filed at least two days before the date of the hearing;

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Initial Hearing

Unless requested otherwise the initial hearing must be a hearing on the merits to resolve all issues of fact and law;

The clerk of each of the court shall fix the time for the initial hearing, no court order shall be required to fix the time or content of the notice of a hearing;

RCW 11.96A.100

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Initial Hearing

If the initial hearing is not a hearing on the merits or does not result in a resolution of all issues the court 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

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Statute of Limitations

Three year statute of limitations for TEDRA actions. RCW 11.96A.070

Read RCW 11.96A.100(1) carefully:

(1) A judicial proceeding under RCW 11.96A.090 is to be commenced by filing a petition with the court;

Practice

Tip

The key is “filing” of the petition tolls the statute of limitations, not just service.

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Special Representative

The personal representative or trustee may petition the court . . . 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.

RCW 11.96A.250(1)(a)

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Cy Près Doctrine

RCW 11.96A.127, new section that codified the Cy Près doctrine in common law.

Applies to charitable disposition by will or trust where the original bequest becomes impossible or impractical.

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A copy of this presentation can be downloaded at www.advocateslg.com