Transcript TEDRA is a - Advocates Law Group

Trust and Estate Dispute
Resolution Act
Law & Practice
TEDRA: Chapter 11.96A RCW
TEDRA Law & Practice
Tom Moser
Advocates Law Group
www.advocateslg.com
December 6, 2012
Introduction
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Recent legislation
5 key elements of
TEDRA
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How to commence a
TEDRA action
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The architecture of
TEDRA
Petition & Summons
Answer &
Counterclaims
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Alternative Dispute
Resolution
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Mediation
Arbitration
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Initial Hearing
Statute of limitations
Special representative
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Cy Près
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Practice tips
More . . .
Legislative Amendments
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TEDRA was amended by SHB 1051 in the
2011 legislature with revisions that
became effective January 2012:
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Trust situs
Venue for proceedings
Notice by electronic transmission
Statute of limitations
Correction of mistakes in documents
Cy près doctrine
Architecture of TEDRA
Architecture of TEDRA
Power
RCW 11.96A.020
Matter
RCW 11.96A.030(2)
Purpose
RCW 11.96A.010
Party
RCW 11.96A.030(5)
Jurisdiction
RCW 11.96A.040
Look first to Purpose of the Act
Purpose
RCW 11.96A.010
The Statute Purpose
The 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
The Statute Purpose
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
Matter is defined in
RCW 11.96A.030
TEDRA gives Power to courts
Power
RCW 11.96A.020
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
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
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)
Power of Courts
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When considering power of
the court to act in a TEDRA
consider the court rules.
Practice
Tip
Court Rules & TEDRA
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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.”
Special Proceeding
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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,
Jurisdiction & Venue
Jurisdiction
RCW 11.96A.040
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
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)
Venue Priority
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)
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)
In Personam or In Rem
Jurisdiction
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The service of the petition and summons
gives the court in personam jurisdiction
over the parties.
Practice
The service provides notice which
Tip
implicates the due process rights of a
party.
Be aware of likely distinction between
RCW 11.96A.100 and .110.
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Notice by mail and electronic transmission.
In Personam or In Rem
Jurisdiction
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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:
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Notice of judicial proceedings in §.110 may be
by mail or electronic transmission;
Notice by summons in §.100 seems to require
personal service.
Definition of Matters
Matter
RCW 11.96A.030(2)
Matters: RCW 11.96A.030(2)
"Matter" includes any issue, question, or dispute
involving:
(a) The determination of . . . The list of
(b) The direction of . . .
“matters” is
extensive
(c) The determination of . . .
(d) The grant to . . .
(e) An action or proceeding . . .
(f) The amendment, reformation, or
conformation of . . .
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Other “Matters” Within TEDRA
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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
Other “Matters” Within TEDRA
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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
Definition of Party in TEDRA
Party
RCW 11.96A.030(5)
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;
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 . . .
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, . . . .
Commencing a TEDRA Action
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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?
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
And
to to
this
come back to
word!
this statute
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, . . .
We will read the
rest of this
section carefully
RCW 11.96A.100
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.100
Now go back to
RCW 11.96A.090
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.
A TEDRA action may
be filed in an
RCW 11.96A.090
existing probate or
trust litigation.
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.
The Petition
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Filing
within the
probate:
Petitioner is
an heir and
the PR is
respondent.
The Petition
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Filing as
an original
action:
The Estate is
petitioner &
respondent
was an heirs
who was
holding assets
of the Estate.
The Petition
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Filing as
trust
litigation:
The Trust & a
co-trustee are
petitioners &
the other cotrustees are
respondents
Invoking Jurisdiction
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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.
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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.
Invoking Jurisdiction
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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
Invoking Jurisdiction
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“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
Notice:
11.96A.090(2). The sons here commenced
This is an
their mediation
action
incidental
to
the
unreported case
probate. No petition was needed.”
In re Estate of Dubois, 146 Wash. App. 1052 (2008)
Summons
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(3) The summons need only contain the
following language or substantially similar
language: The text of the statute is
not the same text as a
normal summons.
RCW 11.96A.100(3)
Summons
Practice
Tip
Don’t let your otherwise
competent legal
assistant draft the
summons from your
CR 4 Summons form!
RCW 11.96A.100(3)
Answer to Petition &
Counterclaims
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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!
Answer to Petition &
Counterclaims
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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.
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Respondent’s Answer did not raise defenses
that she later raised on last day of trial.
Answer to Petition &
Counterclaims
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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)
Mediation
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A party may serve a “Notice of Mediation”
and give notice of a hearing to set
mediation. RCW 11.96A.300
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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.
Mediation
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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:
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Decide the issues outlined in the Notice or
Petition; or
Set the matter for arbitration; or
Directing other judicial proceedings.
Mediation
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A qualified mediator must be:
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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.
Mediation
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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.
Mediation
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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:
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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.
Mediation
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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.
Arbitration
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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:
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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.”
Arbitration
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Arbitration is available only if:
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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
Arbitration
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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.
Arbitration
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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:
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Decide the issues outlined in the Notice or
Petition; or
Directing other judicial proceedings.
Initial Hearing
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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;
Initial Hearing
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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
Initial Hearing
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If the initial hearing is not a hearing on
the merits or does not result in a
resolution of all issues the court may;
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(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
Statute of Limitations
Three year statute of limitations forPractice
TEDRA
Tip
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;
The key is “filing” of the
petition tolls the statute of
limitations, not just service.
Special Representative
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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:
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(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)
Cy Près Doctrine
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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.
A copy of this presentation can
be downloaded at
www.advocateslg.com