Avoiding Notice of Hearing for a Petition for Letters

The Issue: Should the Heirs and Beneficiaries be given Notice that the Court will hear your Petition to be appointed as Descendant’s Personal Representative so that they may be given an opportunity to be heard?

As regards the notice requirements for the Letters portion of your Petition, the only person ever entitled to Notice is Descendant’s surviving spouse.  Consequently:

  1. If Descendant was not survived by a spouse, then no Notice is required to anyone.
  2. If Descendant was survived by a spouse, and you file your Petition after 40 days after Descendant’s death, then no Notice is required to anyone.  Testacy: RCW 11.28.030; Intestacy: RCW 11.28.120.
  3. If Descendant was survived by a spouse, and
    not the surviving spouse or his/her written designee, and
    you file your Petition within 40 days after Descendant’s death, …

    then Notice to the surviving spouse is required if either of the following two conditions is true:

    1. Your Petition is for either Letters of Administration or Letters of Administration With Will Annexed (RCW 11.28.131); or
    2. Your Petition is for Letters Testamentary and community property is in the estate (RCW 11.28.030).

If Notice is required under the former,Letters of Administration requirement, then Notice is required to be sent “at least ten days before the hearing, unless the surviving spouse [has] waive[d] notice of the hearing in writing ….”  RCW 11.28.131

If Notice is required under the latter, “Letters Testamentary + community property” requirement, then Notice is required “for such time and in such manner as the court may determine,” unless the surviving spouse has “in writing waived the right to administer upon such community property.”  RCW 11.28.030

Problem:  If Descendant is survived by a spouse, either

  • Wait until after 40 days after Descendant’s death to file your Petition, or
  • Have the Petitioner be the surviving spouse or his/her written designee, or
  • If Descendant left a Will, Petition for
    • The Surviving Spouse to be appointed Personal Representative over the community property, and
    • You to be appointed Personal Representative over the separate property (See 2003 King County Probate Policy & Procedure Manual, § 3.4.3), or
  • Have the surviving spouse sign a Declination, Designation, & Waiver by Surviving Spouse form
  • Send Notice to the Surviving Spouse.