Procedure for Probating a Lost Will Who is Entitled to Notice of Hearing?

The Law

RCW 11.20.070(1) provides as follows:

(1) If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given.  …

“All persons interested” would be anyone who could gain or lose as a result of the Petition’s approval by the Court.

The Result

  1. Decedent’s heirs — those individuals who would take the estate if the Decedent had died intestate (See: The Heirs);
  2. Decedent’s beneficiaries — those individuals and organizations who would take the estate according to the terms of Decedent’s Will had he/she died testate (See: The Beneficiaries); and
  3. Conceivably Decedent’s transferees — those individuals who take any nonprobate property, ie, “outside of probate,” eg, by joint tenancy and so forth.  If in any doubt, you should send Notice of Hearing to all Decedent’s transferees as well.

It is theoretically possible but highly improbable that a Request for Special Notice would have yet been filed, but if any had, then the list would also include those persons who have requested and are entitled to receive Special Notice under RCW 11.28.240.

Caution: Determining the identity of a Decedent’s heirs, especially in a large, extended family, can be complicated, for example:

  1. Going up one level of kinship & then down — If the Decedent:
    1. Is not survived by children (or lower issue) but
    2. Is survived by one or more:
      1. Parents or
      2. Their children (or lower issue) (ie, siblings — Decedent’s brothers or sisters, nephews or nieces, etc.); or
  2. Going down more than one level of kinship — If the Decedent is survived by:
    1. Multiple generations, and
    2. One or more of the Decedent’s children have predeceased leaving children of their own who have survived the Decedent.

Throughout the process of determining the identity of a Decedent’s heirs, one is guided by the traditional legal principal known as the “right of representation,” which is, indeed, a trap for the unwary.  See: Becoming an Heir by Right of Representation.