| There are two types of Notice: “Pre-Hearing Notice.” You want some matter to be heard and determined by the Court, resulting in the Court’s issuing an Order, establishing some rights or liabilities between you, the estate, and other interested persons. In the absence of an emergency, in order for the Court to issue such an Order, our Federal and State Constitutions require that all such persons be given adequate notice of the hearing and an opportunity to object to what you are asking the Court to do.
“Post-Hearing Notice.” In other situations, you may have already obtained an Order from the Court, establishing some rights or liabilities between you, the estate, and other interested persons. For that Order to be binding on them, our Federal and State Constitutions require that all such persons be given adequate notice of the Court’s having made the Order and an opportunity to object to it within a specified period of time. |
In a prior page, we saw that Probate Courts are responsive — that its parties must ask the Court for what they want. Another consequence of Probate Courts being responsive is that when they are asked to respond, they will do so only when everyone who may have any lawful interest in the matter has had a reasonable opportunity to “give his/her side of the story” to the Court. What Courts want to avoid is taking their time to respond, making a response, and then have someone critical “come out of the woodwork” and say “I didn’t get a chance to tell my story and be heard about the matter.” This issue boils down to what is known as satisfying notice requirements, the procedures of:
Pro se litigants (parties without lawyers), with their understandable unfamiliarity of the law and its practice, often focus on satisfying the law’s substance and overlook its process. This is most often evident in pro se litigants’ failing to satisfy notice requirements.
Without a doubt, satisfying the legal requirements for giving proper Notice is tedious, generates a monumental amount of paper, and can result in substantial mailing charges. Nonetheless, if you do not meet the “black or white” legal requirements for proper Notice, well, as they say in the Garden State, “Fuhgeddaboudid !!!” You will have to go back to the beginning and start all over again:
For all of the above reasons, we need to address the issues in satisfying Notice requirements in greater detail — and will do so in reverse order.
The fundamental rule about setting hearings and satisfying Notice requirements is:
avoid having to set a hearing and satisfy notice requirements if at all possible.
(It is hard to emphasize this too much.)
This may be accomplished in either of two ways:
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“Ex parte” literally means “on behalf of” and connotes that the hearing involves only one party — that you are asking the Court for its approval without Notice to any other party.
Source of Confusion: Probate matters are generally heard in the Ex Parte Department of the Superior Court (an “Ex Parte Court”). Ex Parte Courts were created to conduct “true” ex parte hearings, ie, hearings that don’t require Notice of the hearing to be given to any other party. Over time, their range of cases expanded, so now Ex Parte Courts are assigned to hear most matters that can be heard in no more than 5 to 10 minutes, regardless of whether or not Notice is required to be given. In fact, most matters now heard by Ex Parte Courts require Notice to be given to all parties. Practically speaking, however, Ex Parte Courts handle the workload they do not because of the lack of Notice requirements in a “true” ex parte hearing but because although Notice is required to be given, the parties either:
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In either of the two foregoing situations, you may ask the Court to approve your requests at an ex parte hearing, without your having to have set a hearing and given actual Notice of Hearing, using a procedure that is informally known as “Walking a Matter through Court.”
As you might suspect, these are few and far between, but in our case, they are especially pertinent. Usually the only requests that you will make of the Court is for it to:
Fortunately, most persons (specifically:
qualify for being able to request the Court for both Letters and Nonintervention Powers without having to set a hearing or give Notice of Hearing. If you who don’t fall within these exceptions, see Paragraph F below.
By and large, anything else you may request of the Court will require, at first blush, a hearing to be set and Notice of Hearing to be given. Even then, however, these tasks may be avoided by obtaining a Consent & Waiver from everyone to whom Notice would otherwise be required to be given. If you can obtain a Consent & Waiver from ALL such persons, you may “Walk the Matter through Court” in an ex parte hearing. To do so, you will need to:
Problem: An incapacitated heir or beneficiary (eg, a minor).
Here, you are unable to obtain all the necessary Consents & Waivers, for example:
Bottom-line: It’s now unavoidable — You will need to set a hearing and give Notice of Hearing to all interested parties. To do so:
Timing: At least the statutorily required number of days (+3 more days for sending Notice by mail) before the hearing.
Timing: At least the statutorily required number of days before the hearing.
The general rule in probate is that any matter requiring Notice requires 20 days notice unless another Notice period is specified by statute. RCW 11.96A.100 Most statutes that specify another Notice period specify a 10 day Notice period, resulting in Notice periods in probate usually being of either 10 or 20 days. King County, however, extends the 10-day Notice period to 14 days, resulting in Notice periods there being of either 14 or 20 days. King County LR 98.04(b)(6)
Side-bar: See: Probate Notice Periods.
Caution: Notice is considered to be completed when received, not when deposited for delivery. CR5(b)(1)
Exception: If Notice is deposited with the US Postal Service, service by mail is considered to be completed on the third day following its deposit, regardless of delivery. CR5(b)(2)(A); Jankelson v. Lynn Construction, Inc., 72 Wn. App. 232 (1993). If the third day following deposit is a Saturday, Sunday, or legal holiday, service is completed on the next business day. CR5(b)(2)(A)
If Notice is deposited with delivery system other than the Postal Service, for example UPS or FedEx, service is made only upon its actual receipt, as if it had been personally served.
Caution: Remember to add 3 days to any Notice period specified in this website if you make service by mail.
Lastly, not only must Notice be given but it must also be proven in a writing filed with the Court. This website calls such a proof, in the case of service by mail, a Declaration of Mailing, and usually combines a Notice of Hearing with a Declaration of Mailing into one document, called a Notice of Hearing & Declaration of Mailing, whose original you will file with the Court, generally by handing it to the Judge’s clerk at the beginning of the hearing on your Petition.