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AGO 1957 No. 133 - November 18, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

CLERKS OF COURT ‑- PROBATE FEES ‑- PETITIONS FOR REMOVAL OF ADMINISTRATORS, EXECUTORS OR GUARDIANS, FOR PROBATE OF LATER WILL AND FOR CITING ADMINISTRATOR OR GUARDIAN

Separate filing fees are not chargeable for petitions filed in a probate proceeding for the removal of an executor, administrator or guardian; for the probate of a later will, or by a surety citing the administrator or guardian in such proceeding.

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                                                               November 18, 1957

Honorable Hewitt A. Henry
Prosecuting Attorney
Thurston County Court House
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 133


Attention:  Mr. Harold R. Koch, Deputy

Dear Sir:

            We acknowledge receipt of your letter requesting our opinion on whether separate fees are due in probate proceedings in the following cases:

            (1) Where a petition is filed for the removal of an executrix?

            (2) Where a second or subsequent will is filed in an administration proceeding?

            (3) Where a petition is filed for removal of a guardian?

            (4) When a petition is filed for removal of an administrator, resulting in the appointment of a new administrator other than petitioner?

            (5) When a bonding company, as surety, cites an administrator or guardian, as principal, into court in a probate proceeding in which such administrator or guardian is acting?

             [[Orig. Op. Page 2]]

            We answer each of your questions in the negative.

                                                                     ANALYSIS

            RCW 36.18.020 provides in part:

            "Clerks of superior courts shall collect the following fees for their official services: . . .

            "In probate proceedings, the party instituting such proceedings shall pay, at the time of the filing of the first paper therein, a fee of six dollars; upon the filing of a petition for the sale of real estate, there shall be paid at the time of filing such petition a fee of three dollars; upon the filing of a final account in the settlement of the decedent's estate, there shall be paid a fee of six dollars; for filing any petition to contest a will admitted to probate, there shall be paid a fee of twenty-five dollars;"

            We answer your specific questions separately as follows:

            (1) Provisions for the revocation of letters are provided in RCW 11.28.250.  No fees are specified in this section, nor are any specified for such proceedings in RCW 36.18.020.  Since the right to collect a fee is of statutory creation (see 1915-16 AGO 277 [[to Bureau of Inspection and Supervision of Public Offices on April 7, 1916]]), and none is specified, we conclude that no appearance fee is required of any person petitioning for the removal of an executor or administrator in probate matters.  This office has previously ruled that such a proceeding is part of the original probate proceeding involving the estate of a particular decedent, and merely involves the power of the court to act, in the interests of the estate, through its own duly appointed officers.  (See 1911-12 AGO 66 [[to Bureau of Inspection of Public Offices on May 17, 1911; 1911-12 AGO 126 to Bureau of Inspection of Public Offices on August 23, 1911]]126; 1927-28 AGO 188 [[to C. W. Clausen, Supervisor of Municipal Corporations on August 30, 1927]]; 1951-52 AGO 127b [[Opinion No. 51-53-344 to Lawrence Hickman, Prosecuting Attorney, Whitman County on July 8, 1952]].)

            (2) InIn re Campbell's Estate, 46 Wn. (2d) 292, among the legal principles which the court announced as being well established were these (p. 295):

            "(2) The offer of the later will does not constitute a contest of a prior will, within the meaning of our probate code.

            "(3) A court of probate has inherent authority at any time, while an estate is still open, to admit to probate a later will than that being probated."

             [[Orig. Op. Page 3]]

            Since the offer for probate of a later will does not constitute a will contest, no fees are chargeable under RCW 36.18.020.  Our statute, RCW 11.28.150, specifically provides for the granting of letters testamentary upon the finding of a will following the appointment of an administrator.  We see no different situation in the finding of a later will and conclude that no separate fee is chargeable for the filing of a second or subsequent will for probate.  The primary consideration is the decedent's estate, and the disposition he seeks to make of his estate.

            (3) Having concluded that no appearance fee is required for petitions for removal of executors or administrators, and since we have held (1915-16 AGO 197 [[to Bureau of Inspection and Supervision of Public Offices on December 30, 1915]]) that like fees are chargeable in the administration of guardianships and 197) that like fees are chargeable in the administration of guardianships and decedents' estates, it follows that no appearance fee would be required for petitions for removal of guardians.

            (4) Although our statute (RCW 11.28.120) gives certain preferential rights to next of kin, this preferred right is not absolute.  In re St. Martin's Estate, 175 Wash. 285.  The court having acquired jurisdiction of the estate may appoint any suitable person as administrator. In re Leith's Estate, 42 Wn. (2d) 223.  Consequently, no different situation is presented for charging an additional fee merely because, on a petition for the removal of an administrator, the court not only removes the administrator but also refuses to appoint the person nominated in the petition for removal, and appoints a third person.  Cf.In re Wood's Estate, 3 Wn. (2d) 308; In re Elliott's Estate, 22 Wn. (2d) 334;In re Borman' Estate, 150 Wash. Dec. 750 [[50 Wn. 2d 791]].  In the final analysis, the administrator is a court appointed officer, acting under court supervision, in the administration of a decedent's estate in a manner designed to effectuate its best interests.  In re Peterson's Estate, 12 Wn. (2d) 686.

            (5) Although there is a distinction between the position of the surety on an administrator's and a guardian's bond ‑ the administrator's appointment not being void for failure to file bond (Moe v. Judd, 121 Wash. 14), whereas on filing of bond the surety becomes a party to the guardianship proceedings (In re Kelley, 193 Wash. 109) ‑ we find no difference in their right, as an interested party liable for the defalcation of their principal, to cite the principal for any reason connected with the probate proceeding without payment of an appearance fee.

            In the final analysis, in all the instances cited we are dealing with a single estate, and matters pertaining to its proper administration.  It is the right of the decedent to have his will carried out, or his estate disposed of as by  [[Orig. Op. Page 4]] law provided, which is paramount.  As has been pointed out, these are all part of the same proceeding, and in the absence of any statutory provision requiring a fee, none is chargeable.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


MITCHELL DOUMIT
Assistant Attorney General

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