The Priority Order of Persons Entitled to Letters
- Letters Testamentary
- Letters of Administration (with or without Will Annexed)
- Interaction of Priority Rights with Notice Requirements
The priority order of persons entitled to Letters Testamentary is determined by Decedent in his/her list of named Personal Representatives in his/her Will. If a higher priority nominee is willing and able (and legally qualified) to serve, he/she will be appointed. A lower priority nominee with need to prove to the Court that no higher order nominee is available to serve before that lower priority nominee may be appointed. RCW 11.28.010.
Exception: Regardless of Decedent’s nomination of another as Personal Representative, a surviving spouse of Decedent has the right to be appointed Personal Representative as regards the community property and administer it so long as he/she files a Petition for Letters to Administer the Community Property within forty days after Decedent’s death. RCW 11.28.030
The priority order of persons entitled to Letters of Administration is determined by RCW 11.28.120, which provides that in the first 40 days following Decedent’s death, that priority order is as follows:
- Decedent’s surviving spouse or his/her nominee. The power to nominate lies solely in the surviving spouse and not in the next of kin or a member of any other preferred class; the nominee may be any competent person, not necessarily one interested in the estate. State ex rel. Cowley v. Superior Court, 158 Wash. 546 (1930).
- Decedent’s “next of kin,” in the following order [“Next of kin” means heirs, those who would inherit upon intestacy. State ex rel. Cowley, cited above]:
- Child or children,
- Father or mother,
- Brothers or sisters,
- Nephews or nieces, followed by:
- Decedent’s Trustee, Guardian, or Attorney-in-Fact, if such fiduciary controls substantially all of Decedent’s assets, followed by:
- Decedent’s beneficiaries or other transferees at death, followed by:
- Decedent’s creditors, with Washington having highest priority, followed by:
- A “Catch-all” provision: If none of the above is available or if 40 days have elapsed since Decedent’s death, then “any suitable person.” That person need not be a member of any preferred class. Estate of Leith, 42 Wn.2d 223 (1953).
A higher priority candidate, however, even if eligible, willing, and able to serve, will not necessarily be appointed, for a variety of reasons:
- To be appointed as a Personal Representative, a person must meet the statutory qualifications — see RCW 11.36.010.
- According to the priority statute itself, the priority rights occur only during the first 40 days following Decedent’s death. Consequently, once 40 days have elapsed, the priority rights lapse and “any suitable person” may be appointed.
- During the first 40 days following Decedent’s death, any person having priority must appear at the hearing for appointment or be foreclosed. State ex rel. Karney v. Superior Court, 143 Wash. 358 (1927). Consequently, mere priority is insufficient.
- And during the first 40 days following Decedent’s death, even if a person has priority and appears at the hearing, the Court has discretion to appoint someone else lacking priority. Estate of Leith, 42 Wn.2d 223 (1953); Estate of St. Martin, 175 Wash. 285 (1933).
There are two safeguards ensuring that at least during the critical “first 40 day” period, a person having priority will be appointed:
- As for the appointment of any surviving spouse: The pertinent notice statute, RCW 11.28.131, requires that notice of the hearing on any Petition for Letters of Administration be sent to Decedent’s surviving spouse, if any (but not to any other person having any priority); and
- As for the appointment of any next of kin: The priority statute itself, RCW 11.28.120, provides that in order to appoint someone other than Decedent’s surviving spouse, his/her nominee, or a next of kin, the Court must be satisfied that “there is no next of kin” (note that the statute does not require that the Court be satisfied that any Petitioner who is a “next of kin” have the highest priority among all next of kin).
If you desire to file a Petition for Letters of Administration within the first 40 days after Decedent’s death and one or more other persons may be entitled to Letters of Administration, it might be helpful for you to have each such other person complete and deliver to you, for filing with the Court along with your Petition for Letters, a:
As we will soon see, the notice requirements for Letters are less demanding than for Nonintervention Powers. This difference may make it advantageous in some circumstances (eg, no surviving spouse wanting Letters but multiple next of kin who want to obtain Letters by themselves) to petition for Letters and Nonintervention Powers sequentially instead of simultaneously.
First, consider a simultaneous Petition for Letters of Administration & Nonintervention Powers. On the one hand, if Decedent’s surviving spouse is eligible and wants to obtain not only Letters of Administration but also Nonintervention Powers, then he/she, being in the highest priority position, should be able to do so — and do so without having to send Notice of Hearing (assuming estate solvency, no separate property, and no children of a prior marriage).
If, however, Decedent is not survived by a spouse or if survived by a spouse, the spouse does not want to be appointed or nominate another, then in order for another, such as a next of kin, to obtain both Letters and Nonintervention Powers, Notice of Hearing will be required to be given to all heirs. RCW 11.68.041 This means that if there are multiple next of kin among the heirs and more than one wants to obtain Letters by themselves, sending Notice may alert the other next of kin about the hearing, giving them the opportunity to appear at the hearing and compete for appointment (at least if they have equal or greater priority and the “first 40 day” period has not elapsed). What is needed is a way to obtain Letters during the “first 40 day period” without sending Notice of Hearing to other next of kin. This should be able to be accomplished by petitioning only for Letters during the “first 40 day” period, obtaining one’s Letters then, allowing the 40 day period to lapse, and then petitioning for Nonintervention Powers as Decedent’s Personal Representative. Notice of Hearing as regards the later Petition for Nonintervention Powers of course would be required to be sent to the other next of kin, but by then, their priority rights would have lapsed.
Therefore, so long as any surviving spouse has received or waived proper notice and fails to appear at the hearing or nominate another, Letters of Administration should be able to be issued promptly following Decedent’s death to any next of kin, regardless of his/her priority among all next of kin, by that person petitioning for Letters only (allowing the Petition for Letters to be “walked through the Court” without having to send Notice of Hearing).