Obtaining Nonintervention Powers

Why Obtain Nonintervention Powers: Nonintervention Powers will allow you to administer and close the estate without further interaction with, or supervision by, the Court.  Otherwise, you will have to obtain Court approval before taking most of the usual actions of estate administration, likely necessitating an attorney’s engagement and resulting in increased expenses and delay.

Specifically, a Personal Representative having Nonintervention Powers may:

• Borrow,
• Mortgage,
• Lease,
• Sell,
• Exchange,
• Distribute,
• Settle the estate, and otherwise
• Take all the actions regarding the estate and its assets that a Trustee may take regarding a Trust under RCW 11.98.070, 11.100, and 11.102 —

without either Notice (to heirs, beneficiaries, and creditors) or Court approval — a remarkably broad set of powers.  RCW 11.68.090  No other State besides possibly Texas is believed to allow Personal Representatives such independent powers over probate estates.

Solvency – an Absolute Requirement for Nonintervention Powers:  To obtain Nonintervention Powers, the estate must be solvent, that is, it must have “more assets than debts and expenses.”  King County, for example, defines solvency as “the value of Decedent’s probate assets and nonprobate assets exceeds the anticipated amount of Decedent’s debts and the costs of administration.”  2003 King County Probate Policy & Procedure Manual, § 4.2.

Additional Requirements:

1. Testate Estate: Decedent’s Will names you as Decedent’s Personal Representative.  If so, you may obtain Nonintervention Powers concurrently with your appointment as PR — without notice to anyone.
2. Intestate Estate:
   1. Without Notice:
      1. You are Decedent’s surviving spouse, and
      2. Decedent’s estate consists ONLY of community property, and
      3. At the time of filing the petition, all of Decedent’s living children are also your children (eg, Decedent has no living children of a prior marriage).
   2. With Notice to, or the Written Consent of, Each Heir and Beneficiary: The “Catch-all” provision:
      1. You were not a creditor of Decedent at Decedent’s death, and
      2. It would be “in the best interests of Decedent’s beneficiaries and creditors” if Decedent’s estate were administered with Nonintervention Powers, with that being presumed to be true unless an interested party can prove otherwise.

   Practically Speaking:  Assuming estate solvency, the problem is usually not so much whether you can qualify for Nonintervention Powers — the problem is whether to obtain Nonintervention Powers, you will have to either:

   1. Set a hearing and give Notice of Hearing to all interested parties or
   2. Obtain their written consent.  See 7.b.

   If Decedent’s Will names you as Personal Representative or if you are Decedent’s surviving spouse etc., then, assuming estate solvency, you may obtain Nonintervention Powers concurrently with your appointment as PR without further work.  Otherwise, assuming you were not a creditor of Decedent at Decedent’s death, you will need to satisfy one or the other of the immediately above requirements to obtain Nonintervention Powers.

   Problem: You can’t meet any of the foregoing criteria to qualify for Nonintervention Powers because, for example:

   1. Insolvency: The estate is not solvent.  Estate solvency is an absolute requirement for Nonintervention Powers.  A probate proceeding for an insolvent estate will necessarily be Court-supervised (an “intervention” probate).
   2. No Nominated PR Will Serve: Decedent died testate but none of the named Personal Representatives is able to serve.  Although you can’t qualify under the 1st situation (allowing you to avoid Notice of Hearing), you should be able to qualify for Nonintervention Powers under the 3rd situation so long as you were not a creditor of Decedent at his/her death (which will necessitate your either giving Notice of Hearing to, or obtaining a Consent from, all those entitled to notice).  See: Satisfying the Notice Requirements.
   3. Intestacy + Separate Property: Decedent died intestate and you are not his/her surviving spouse, or separate property is in the estate, or Decedent has children of a prior marriage, etc.  Although you can’t qualify under the 2nd situation (allowing you to avoid Notice of Hearing), you should be able to qualify for Nonintervention Powers under the 3rd situation so long as you were not a creditor of Decedent at his/her death.  See: Satisfying the Notice Requirements.

   Problem: If you still do not appear to be able to qualify for Nonintervention Powers, you might:

   • Petition for Letters and for Nonintervention Powers sequentially.  See: Petitioning for Nonintervention Powers after Your Appointment.  Perhaps your circumstances will change in the interim. Or —
   • Engage an attorney, preferably one with substantial probate experience, to give you a “second opinion” and to see if your situation could be recharacterized, eg, for no other purpose than to qualify you for Nonintervention Powers.

   Problem:  An incapacitated heir or beneficiary (eg, a minor)

   Caution: If after you receive Nonintervention Powers, the estate either:

   • Appears to become insolvent, or
   • Becomes insolvent, …

   See: Estate Insolvency.