THE PROBATE CODE

DIX H. ROWLAND, TACOMA.

The lawyers of the state have, for many years, recognized the fact that the probate code needed revision. The original probate law frst enacted as a code in the Laws of 1881 has, during 33 years, been amended from time to time until now the law needs to be rewritten, so that it may be better adapted to insure the speedy and proper settlement of the estates of deceased persons, minors and incompetents. Upon request of the King County Bar Association, Governor Hay appointed a commission consisting of Dean Condon of the Law School, J. B. Bridges, Harold Preston and John C. Hogan to revise the probate law. Their report was presented to the Legislature of 1913, but not early enough in the session to become a law. It was introduced in the House as a Judiciary Committee Bill and had the unanimous support of the Judiciary Committee. It passed the House with but one dissenting vote and only failed to pass the Senate, because it came there in the rush of legislation inevitable at the close of every session. It failed in the Senate, not because the Senate was opposed to it, but simply because it did not seem to find time to consider it. So many other things calling for the appropriation of money seemed more important to the senators.

It is my purpose at this time to make some comments upon this proposed code of the probate law, to point out the principal changes that are made in the existing law and to show why it will be to the interests of not only the lawyers, but our clients, as well, to see to it that this probate code in substantially the form it passed the lower house, is enacted into a law at the next session of the legislature.

Considerable demand exists that our laws be made, so far as possible, expeditious in their operation, and not filled with technical rules to trap the unwary. This proposed code contains two hundred and twenty-one sections, as against three hundred and eighty-three sections in the present code. This consolidation has been effected by dropping out many sections that seemed unnecessary, by combining others, by simplifying the language used, but, I believe, nothing really essential has been omitted. The mistake has not been made of setting out every step of procedure' in such detail as to make a voluminous law and so emphasize the technical rules of practice. This is in accordance with the trend of modern legal procedure. No attempt has been made to rewrite the language of the law. In fact, the wording of the present code has been generally followed in al cases, where they could be any dispute over the meaning, and in all cases, where the courts have determined by their decisions the construction of sections liable to be drawn in litigation.

The contest of a will must be brought within six months, instead of one year, as at present. The present law is changed so that infants, married women, persons absent from the United States and those of unsound mind are bound by the decree establishing the will and do not have one year after the removal of disability to contest the proof of a will. The code, as originally presented, makes no change in the provisions as to nuncupative wills, but the law, as it finally passed the House, makes every nuncupative will invalid, unless made by a soldier while in service, or a mariner while at sea. The lawyers in the House were of the opinion, that to permit the making of nuncupative wills generally, opens too wide a door for fraud.

No change has been made in the provisions as to non-intervention wills, except that claims must be presented within four months after the first publication of notice to creditors. I have never been much of a friend of the non-intervention will. It is unknown in most of the older states. If a testator wants to create trusts to manage his estate, let him do it in the ordinary manner, but I am of opinion, it would be much better to require the settlement of all estates in the usual manner. The proceedings under a non-intervention will have always seemed to me to be not unlike a piece of unfinished business, frequently leaving titles to real estate in an unsatisfactory condition.

No change is made in the notice required on an application for letters testamentary or of administration, except that if the surviving husband or wife applies for letters, notice need not be given.

Considerable change is made in the provision for the support of a family. The probate homestead is eliminated; that is, a selection of homestead cannot be made after death, but if the estate does not exceed $2,000.00, in value, after paying funeral expenses and expenses of administration, the surviving wife is entitled to the entire estate, free of all other debts. If there are children under eighteen years of age, the surviving husband is entitled to the same exemption. If there are no parents and there are children under eighteen, they are entitled to the same exemption. At present, a homestead may be selected after death and such property, as is exempt, is also set off and a provision is made for a family allowance; but in the proposed law, the $2,000.00 exemption covers all of these various items, except wearing apparel and household furniture, as to which no change is made. Of course, if the homestead was selected before death, that would not in any way be affected by the probate proceedings. If the estate exceed $2,000.00 in value, the same exemption of $2,000.00 is allowed to the same persons and in addition, an allowance may be made to wife or minor children for support and maintenance. Where the estate is under $2,000.00, no notice to creditors need be given, but the estate is closed immediately upon setting off of the $2,000.00 in property. Thus the demand for the speedy and economical clos

ing of small estates is fully met. Some members of the legislature were in favor of making this exemption $1,000.00 as at present, instead of $2,000.00, and that suggestion is one worthy of consideration.

The provisions in regard to sales of personal property or real estate, are much simplified. No petition or notice of sale is necessary, in case of personal property, unless the court so decides. But no sale is final, until its approval by the court. A return of sale should be filed within ten days, and after five days it may confirmed or rejected and a new sale ordered. In the case of real estate, the law provides for the presentation of a petition similar to that now required, but no notice of hearing of the presentation of such petition is necessary, unless the court so decides. At present, it is necessary to give at least four weeks notice by publication of the presentation of a petition. While the law provides for the presentation of a petition, yet, nevertheless, it also provides that no allegation of a petition, necessary, to give the court jurisdiction and the court may, if it sees fit, order a sale without any petition having been previously presented.

No change is made in the notices required of sales of real estate at public auction or private sale, but if, after the return of sale is filed, an offer of ten per cent more is made, the first bidder is given an opportunity to raise his bid five per cent and, if he does so, he may get the property, without a new sale being ordered. The following section applies to all sales:

"No petition or allegation thereof for the sale of real estate shall be considered jurisdictional, and confirmation by the court of any sale shall be absolutely conclusive as to the regularity of all proceedings leading up to and including such sale, and no instrument of conveyance of real estate made after confirmation of sale by the court shall be open to attack upon any grounds whatsover except for fraud, and the confirmation by the court of any such sale shall be conclusive proof that all statutory provisions and all orders of the court with reference to such sale have been complied with."

This same section is also made applicable to sales of property of minors and of incompetents.

Query, Does a provision of this sort encourage slovenly practice by attorneys? And will it become unnecessary to lay bare the blunders of fellow lawyers? A more serious question is presented as to whether a sale would be valid without notice. If there is doubt about it the notice should be retained.

Instead of the fees of an executor or administrator being fixed and unchangeable as now, the court is given discretion to fix the fees at such sum, as seems just and reasonable, but they shall not exceed five per cent up to $4,000.00 and four per cent on estates above $4,000.00. The court is also given permission to allow the attorneys such compensation as is just and reasonable.

One of the most important changes in the law is that which requires the presentation of claims against the estate within four months after the first publication of notice to creditors, instead of one year, as at present, and in permitting the settlement of the estate after the expiration of the four months. In New York, the period is six months. The law provides, that within twenty days after the four months expire, the executor or administrator shall present a report of the affairs of the estate. Such report shall contain a statement of claims filed and allowed and those rejected. He may also report whether it is necessary to sell or mortgage any property and he shall state the amount of property which has come into his hands and a statement of the sums collected by him and such other matters, as may be proper and necessary. In case it is a final report, he shall also set out the names and addresses of the legatees and heirs and may ask for a settlement and distribution of the property. Notice of the final report and of the proposed distribution shall be given by posting notices in three places for fifteen days before the hearing, and publication in a newspaper once a week for two weeks. At present, where settlement and distribution take place at the same time, many lawyers post and publish separate notices, one of them being an order to show cause; some combine the two in a single order to show cause. The change made is in the interest of economy and celerity. Upon such hearing, the court determines whether the estate shall be settled, who are the legatees or heirs, and makes the usual decree, settling the estate and distributing the property. It is now impossible to settle an estate within less than six weeks from the filing of a final account. Under the proposed law, it is possible to close the estate in about three weeks, so that an entire estate can be settled and distributed in less than five months as against approximately fourteen months under the present law.

No change is made in the order in which claims against the estate are paid, except that funeral expenses are only made a preferred claim to the extent of $75.00. The purpose of this is obvious and seems to meet with considerable approval from all parties, except the undertakers.

In cases for the specific performance of decedent's contracts to convey real estate, no substantial change is made in the law, except that, where the petition and notice can be served personally upon the executor or administrator, it is not necessary to publish a notice for four weeks as is now required. Also, the present law provides that the decree of specific performance, does not become final until the expiration of the time to appeal, viz: ninety days. Under the proposed law as it was amended in the House, where there is no contest, the decree becomes conclusive forthwith, without the necessity of waiting ninety days for an appeal.

In the case of the appointment of guardians for minors, the law

is practically the same, except that no notice of appointment is nec essary, if the application is made by a minor over the age of four teen years, who asks for the appointment; nor is any notice required where the petition is made by a foreign guardian. The only case, under the present law, where the notice is dispensed with, is where the application is made by the father or mother of children under the age of fourteen years. Power is granted to a guardian of a minor or incompetent person, to mortgage the estate of his ward; thus a serious deficiency in the present law is corrected; and the practice in regard to the sale of property by guardian conforms to the practice in sales by an executor or administrator. The same provision is inserted with reference to attacks upon alleged defective sales and after confirmation no sale can be adjudged void, except in cases of fraud.

The sections in regard to partition of real estate in probate are omitted. At present, an application for partition must be made by an heir after the commencement of the proceedings for final distribution. It can be made as well in a separate suit under the general partition law and it was thought no advantage to retain it in the probate code.

In closing, I desire to mention the proposed law, fathered, as I understand, by the State Tax Commission, relative to public administrators in each county. I believe such a law ill-advised.

The pro

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posed probate law corrects all deficiencies in the present law. makes the settlement of small estates easy and economical. No de mand exists for a public administrator. It would be merely anoth er political job with a rare opportunity to parcel out a lot of patronage. Where tried, it has not resulted in greater efficiency or economy. In many cases, notably in California, it has been an avenue for graft and public scandal. Estates are honestly administered now. Where there is one case of abuse, there are a hundred of honest, economical administration. The judges of the court have ample powers to safeguard the rights of all concerned. I challenge the man who says the present probate laws tend to encourage excessive fees to lawyers to prove it. A member of the last Legislature, not a lawyer, said to me: "The lawyers are about the only ones here, who, in the interest of the public good, will vote for meas ures which strike directly at their own pocketbooks." The lawyers of this state favored generally the Employees' Compensation Law-a law which took at least one-third of their practice. It will be the thoughtless man who will support this law for a public administrator under the delusion that he he is thereby striking a blow at the attorneys.