Thursday, July 07, 2005
~ washington state appellate court decision on due diligence in locating heirs to an estate ~
We agree with the trial court. Allocating the burden of proof to the executor is more consistent with the executor's role as an 'officer of the court and a fiduciary for the heirs'. Hesthagen, 78 Wn.2d at 941. Because the executor has the fiduciary duty to identify and notify those who are statutorily entitled to receive notice, it logically follows that in the event of a later challenge based on lack of notice, the executor will have the burden of showing that he used reasonable diligence to discharge his duty. Otherwise, and especially where the executor of an estate has a beneficial interest in it, the sense of fiduciary duty might easily give way to a temptation to conduct a superficial search or none at all.11 We conclude that evidence showing how Vannoy could have located the nieces and nephews was not a prerequisite for reopening the estate for lack of notice to them. Vannoy, whose 'best presentation' below included no evidence that he was diligent, was correctly found to have breached his duty to identify and notify these heirs of Martin Little. As a consequence, the decisions made in the probate are void as to these heirs. The court did not err in ordering the reopening of the estate. Affirmed. Vannoy's request for attorney fees on appeal is denied.