Legal Question in Wills and Trusts in Washington

Recently (December 2010), my father and step-mother were divorced. In the divorce decree were explicit instructions on how joint debt was to be paid off while both parties are alive. I am the executor of my father's will and I have durable power of attorney while my step-brother is executor of my step-mother's will. My step-mother died this week before she could sign her final draft of her will, but my father has signed his. They were represented by the same attorney (family friend, but conflict of interest?). I believe my step-mother's estate is going into probate, but am unsure when and my step-brother is not telling us. Does the divorce decree (signed and filed) have legal presedence over the will since the decree details how joint property (cd's, mortgages, investments) is to be disbursed? Will the probate courts automatically know, via divorce decree, the distribution of monies/property or do I need to be present during probate to present the divorce decree?? I am unsure of the process and not sure of the attorney who is more of a family friend to my step-mother than my father. I don't believe he has my father's best interest in mind and I am simply trying to protect my father while he is still alive. While he is compitent, I don't believe some of the things he signed are what he recognized as being initially presented in the divorce decree.
Simply trying to do what's right!

Asked on 2/21/11, 9:24 am

2 Answers from Attorneys

Charles Cruikshank Cruikshank Law Office-Since 1975

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Wills, almost always, only deal with interests that a deceased person (�decedent�) still has an interest in at the time of their death. A person cannot pass on property or interests which they no longer have. Typically, the divorce decree would realign the interests of the couple being divorced, as it separates jointly-owned interests so that the divorcees can go their separate with way, each with the divorce court�s allocation of the property they owned during their marriage.

Sometimes this is not easy to do at the time the divorce is finalized. This could happen where they jointly owned a house and one awarded the house and is to continue to live in it after the divorce and is pay the moving-out spouse their one-half of the house�s value, but the �house-spouse� does not have the cash to do to at the time of the divorce. The moving-out spouse may be granted an interest-bearing lien against the house until it is sold, perhaps many years later, and that realigns the interests that they can pass on by their wills. This is only one example. If everything can be separated and transferred at the time of, or shortly after, the divorce is finalized, this is not an issue and the divorce decree dictates what can be passed on by the couple�s wills.

You do not say as to what matters they were represented by the �same attorney,� whether for the divorce or the wills or both. Either dual representation has a very high risk of conflict of interest and circumstances would have to be looked at to determine if there was an actual conflict (probably, yes) and, if there was, whether the conflict was waived, and, if yes, whether that waiver was valid.

All of this needs to be scrutinized quickly, as the periods for challenges are limited by law and may be quite short in time.

Answered on 2/21/11, 9:55 am

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