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WA-Probate > Probate-Litigation > TEDRA Petitions > Typical Procedures Involved re a TEDRA Petition

Typical Procedures Involved re a TEDRA Petition

1.  Filing of TEDRA Petition

Requires:

• Case Information Cover Sheet (informing the Court Clerk’s Office of the case type so it may open an appropriate new case file)

• Note for Motion Docket (directing the Clerk’s Office to note the date & time of the initial hearing on the Court’s calendar)

• TEDRA Petition (describing the Petitioner’s claims and requesting the Court for relief; see RCW 11.96A.080(1))

• TEDRA Petition (describing the Petitioner’s claims and requesting the Court for relief; see RCW 11.96A.080(1))

• TEDRA Petition (describing the Petitioner’s claims and requesting the Court for relief; see RCW 11.96A.080(1))

May also include:

• Exhibits (Declarations, Affidavits, etc.)

• Memorandum of Points & Authorities in Support of Petition (setting forth applicable law & applying it to facts of case)

2.  Serving of Documents on Opposing Party (20-days notice period)

Requires:

• Delivery of at least:

  • Note for Motion Docket

  • TEDRA Petition

  • Summons under TEDRA

  To all parties of interest personally (not just to their attorney)

• By personal delivery or by Certified Mail – Return Receipt

• 20 day notice period (between date of receipt & date of initial hearing)  RCW 11.96A.110(1))

3.  Response (5 days notice period)

Any opposing party may respond to the Petition by filing a Response including any of:

• Answer (admitting or denying the truth of the allegations)

• Affirmative Defense (stating new facts or law that defeat the Petition’s claims)

• Counterclaim (a claim by the opposing party against the petitioner)

• Cross-Claim (a claim by the opposing party against a new party)

Required to be filed with the Court & served on the petitioner by five Court days before the initial hearing.  RCW 11.96A.100(5)

4.  Notice of Mediation (or Arbitration) (3 days notice period)

If any party desires to avoid having the Court hear the matter on its merits at the initial hearing, the party may take any of three actions:

• Request otherwise in a Petition or Response --- for example, that the matter be set for trial, allowing the parties time for discovery of evidence.  RCW 11.96A.100(8)

• File a Notice of Mediation, requiring the matter to be resolved by (nonbinding) mediation.  RCW 11.96A.300

• File a Notice of Arbitration, requiring the matter to be resolved by (binding) arbitration.  RCW 11.96A.310

Mediation is the usual first alternative.  Then, if mediation later fails and any party continues to desire to avoid a Court hearing, arbitration follows.

Requires:

• Filing with the Court and serving on all opposing parties a Notice of Mediation (or Arbitration), stating that the issues in dispute will be mediated (or arbitrated).  Form specified in RCW 11.96A.300(1)(a).

• By 3 Court days before the initial hearing.  RCW 11.96A.300(1)(b)

Mediation involves an experienced probate attorney or retired Judge who plays the role of a facilitator in a mediation session, attempting to find a solution to the problem that is acceptable to all parties; the mediator has no decision-making authority.  Arbitration is effectively a private Court trial before a similar person.  In arbitration, however, the arbitrator has ultimate decision making authority --- the parties present their respective positions, largely like in Court, with witnesses etc., and the arbitrator decides the matter.  The arbitrator’s decision may be appealed to the Superior Court, which will hear the matter de novo (as if it had not been arbitrated).  If the arbitrator’s decision is upheld, the prevailing party is entitled to be awarded its costs, including its attorneys’ and expert witness’ fees.

In most cases the Notice will include not only the notice that mediation will be used but also a list of three possible mediators.  Attorneys usually have their own list of mediators that they recommend.

5.  Reply (2 days notice period)

The petitioner may respond to the Response of any opposing party by filing a Reply including any of:

• Answer (admitting or denying the truth of the allegations of any counterclaim or cross-claim in the Response)

• Affirmative Defense (stating new facts or law that defeat any counterclaim or cross-claim in the Response)

• Counterclaim (a claim by the petitioner against any any counterclaim or cross-claim in the Response)

• Cross-Claim (a claim by the petitioner against a new party in response to any counterclaim or cross-claim in the Response)

Required to be filed with the Court & served on the petitioner by two Court days before the initial hearing.  RCW 11.96A.100(5)

6.  Initial Hearing

On the one hand, TEDRA provides “Unless requested by a party in a petition or answer, the initial hearing must be a hearing on the merits, to resolve all issues of fact and all issues of law.”  RCW 11.96A.100(8)  On the other hand, exceptions abound and it is an unusual TEDRA matter (few, simple facts & few, usually only one legal issue) that is heard on the merits at its initial hearing.

In King (Seattle), Pierce (Tacoma), and Snohomish (Everett) Counties, all probate matters, including TEDRA Petitions, are heard before a Court Commissioner in the Ex Parte Department of the Superior Court.  King County has approximately 60 Superior Court Judges.  Three (3 / 60 = 5% of the total) are assigned to the Ex Parte Department.  The Ex Parte Department accounts for approximately 70% of all Orders entered by the King County Superior Court, approximately 1000 daily.  5% of the Judges hear 70% of the Petitions and Motions and sign 70% of the Orders.

The Ex Parte Department hears many matters in a short period of time and disposes of them quickly, generally allowing no more than 5-10 minutes each.  If the hearing appears as if it will require more time (for example, for oral testimony of witnesses or for argument on multiple legal issues), the Commissioner will likely set the matter for trial before a Superior Court Judge, usually three months later.

In most if not all other counties, probate matters are heard before a Superior Court Judge, and they are more inclined to decide a TEDRA Petition at its initial hearing so long as the matter can be heard within 15-20 minutes (generally 5-10 minutes per side).  If more time is required or either party requests it (for example, for discovery of evidence), the Court will set the matter for trial.

At the initial hearing, therefore, a number of alternatives are possible:

• No party files a Response or attends the hearing: The Court will likely issue a Default Judgment against the non-responding party.

• If any party has requested in a Petition or Response that the matter not be heard on the merits at the initial hearing, the Court will likely set the matter for trial.  Note, however, that the Court has authority to “enter any Order it deems appropriate, which Order may (a) resolve such issues as it deems proper, (b) determine the scope of discovery, and (c) set a schedule for further proceedings for the prompt resolution of the matter.”  RCW 11.96A.100(8)

• If any party has timely filed and served a Notice of Mediation.

  • If facts are in dispute, the Court will likely order mediation to occur before a mediator chosen by the parties or, if they can’t decide, by the Judge.  The matter will then be mediated, usually within the next month or two.  If it doesn’t settle at mediation, it goes back to Court.

  • If no facts are in dispute and the question is which law to apply and how to apply it, the Court will likely deny mediation and either decide the matter on its merits or continue the hearing and order the parties to brief the applicable law.

• If no Notice of Mediation has been timely filed:

  • If no facts are in dispute and the question is which law to apply and how to apply it, the Court will likely deny mediation and either decide the matter on its merits or set the matter for trial, so the parties may brief the applicable law.

  • If critical facts are unknown or in dispute, meaning that the facts will need to be discovered or witnesses will ultimately need to testify, the Court will likely set the matter for trial, usually in three months or so.  That will usually give any party sufficient time to undertake “discovery,” interviewing possible witnesses, obtaining further evidence, etc.  Also, witness testimony usually takes substantial time, more than the 10-20 minutes that the Court allows at an initial hearing.  So, if witnesses are required, the Court generally sets the matter for trial.

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