Probate in Washington

Chapter 7: The Worst Cases

Married with Separate Property

Mitch married one of those lovely and sensible girls who saved her money! She had multiple accounts with money she’d saved when they tied the knot. With three beautiful children, it was a shock when she died suddenly.  She’d designated half of her life insurance to two of the children but not the newborn. Our first issue was whether the newborn was a “pretermitted child” which means that the child was forgotten and should be included. The Court appointed a Guardian ad Litem from the beginning of the case and he wanted to know what belonged to the children, as opposed to what Mitch was supposed to get as his 50%. Like many spouses, Mitch assumed he got it all. We’ve covered this scenario above. What we haven’t covered yet is what happens to the life insurance.

Life insurance is a contract. The company pays the benefits the way it was instructed to, in the beneficiary designation (unless the parties can clearly show that something else was intended).[1] If the designation says pay half to my two young children, then that’s what they will do. The glitch is that the children are in Washington State, and we have laws about this. Children can’t have money. Guardians get money, and as you’ve learned already, those guardians have to put the money into blocked accounts or trusts.  Mitch talked with the insurance company, a corporation in Maine, and the agent said that all he had to do was get himself appointed as the guardian and they’d send him a check.  Yet the Washington Court said that he could not simply receive the check. The Court said that the money had to go into the blocked account or a trust. You can imagine that Mitch was angry and upset. He thought he should be able to handle the insurance funds without any interference from the Court, because he was the natural father.  It is unfortunate that other parents before Mitch had sullied this legal landscape. It wasn’t his fault, and it wasn’t that he was suspected of doing anything wrong in the future. It is simply that history has told us that some parents will abuse the opportunities that are laid before them. 

Married with Imagined Separate Property  

Alice was not happy with her husband, a man she’d married in her 40s. She was so unhappy that she went to a lawyer and told him that all her property was separate, and she could prove it because the accounts were in her name. She wrote a Will saying that all of her property, including the bank accounts and the house, went to her daughter from another marriage.  As she approached her death, Alice went to the bank and put her daughter’s name as a “pay on death” beneficiary. Alice was, unfortunately, relying upon her own legal determination of what was separate property. The truth was that her husband had paid all the bills. He had a state retirement that he knew would come in, and he knew she didn’t have any retirement plans. So he told her to save all her paychecks for her retirement. And she did! All those paychecks were earned in the State of Washington while they were married. They were Community Property.

When they first married, Alice had about $40,000 in cash, and because she had better credit than her husband, she made the down payment on the house and took out the loan in her name. You already know from the stories above that her husband didn’t own the house even though we could prove that he paid every mortgage payment, every real estate tax, every utility bill for 15 years. 

The other thing Alice didn’t tell the lawyer was that she had terminal cancer and was on pretty heavy medications when she went to see him. After she died, he was shocked to find out that she was ill at all.

The minute she was gone, the daughter cleaned out the bank accounts, 15 years of earnings. At the funeral, she told the husband he had a week to get out of the house. The husband had to sue Alice’s estate to get anything. He didn’t own the house. However, we argued two things. First we argued that she was on such heavy medication when she signed the Will and that when she named her daughter as the beneficiary of the accounts, she was not able to really understand what she was doing. Second, we proved that what Alice had in the bank was all Community Property and that her husband owned all of it at her death. Under Washington law, it doesn’t matter how the account or property is titled. What matters is where the money came from. If it was earned, while married, while in the State of Washington, then it’s Community Property.

Alas, daughter had already spent quite a bit of the money. She’d paid off the mortgage on the house. She had a $600 puppy, a new car, a leased horse, and quite a few other “necessities”. Since much of the money was gone, she had to give the husband the use of the home for the rest of his life and the remaining cash. For a man who loved his very ill wife and provided home care for her until she took her last breath, this was a bitter and sad ending.

Wrongful Death and Medical Malpractice cases               

Everyone doesn’t die of natural causes. Sometimes people die in circumstances that other people cause.  Mary Jo was in her mid-50s when she died. Her three children all told me that she died of a heart attack.  The probate itself had some problems, because the daughter who was named as personal representative didn’t file a probate for two years. She moved into the house, saying Mother wanted her to have it, and ran it into the ground.  She stayed there until the health department kicked her out. That’s when one of the sons came to see me to get the probate going. The other son was a Vietnam veteran with severe mental health issues from the war. This case had nothing but problems. We needed a Guardian ad Litem for the ill son and a trust for his share. We had to clean up and sell a house that was a mess.  We had one daughter who’d lived in the house rent-free for two years, and the rental value had to be deducted from her final share. Nobody gets to live in the house rent-free.

Just ten weeks shy of three years from the date of death, I met all the children at the court house to sign the final closing papers. Just before going in to see the judge, I told them I was so sorry that they’d lost their mother at such a young age. And that’s when one son responded, “Ya, that nurse said she shouldn’t have died.”  Stunned, I asked, “What do you mean?”  A whole new story began to emerge. It turned out that the mother had gone into the hospital for some normal surgery. Her personal characteristics (over 50, post-menopausal, overweight, diabetic) indicated that her legs should have been wrapped in pressure hose. But the doctor didn’t order it. She got a clot, it went to her heart and she died of a heart attack.  I asked them why they didn’t mention those facts to me. They’d only said she died of a heart attack. They didn’t have any answer, but said that they had an aunt who was a nurse and thought they should investigate. They got the medical records before they met me, but then with all the confusion about the daughter in the house and the mentally ill son, they just let it go.

In a blink of an eye, I told the judge we were not ready to close the case. In the next few hours, I contacted a medical malpractice attorney. They had only weeks to file the suit, since those cases have to be filed within three years of the injury. The end result was that there was a settlement which the children shared.


[1] The words that can be written on the topic of beneficiary designations would fill up a book as large as this one!  This is a complicated and expensive area of law. Just remember: there are trump cards to a Will and a beneficiary designation is one of them.