                                                                FILED
                                                            OCTOBER 22, 2019
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Estate of:               )         No. 36238-8-III
                                              )
ANNE LORRAINE TROYER,                         )         UNPUBLISHED OPINION
                                              )
                     Deceased.                )

       PENNELL, J. — Timothy Troyer appeals a probate court order declining his

appointment as personal representative of his mother’s estate and, instead, appointing

a neutral third-party administrator. Because the evidence presented to the probate court

showed Timothy Troyer was incapable of acting as a fiduciary of the estate, we affirm.

                                         FACTS

       Anne Lorraine Troyer died testate. Her last will and testament directed equal

distribution of her estate to her three children: Timothy Troyer, Lori Troyer, and Irene

Ornovitz. The will named Timothy Troyer as executor.
No. 36238-8-III
In re Estate of Troyer


       Prior to Anne Troyer’s death, Timothy Troyer served as her primary caregiver.

This lasted for several years until Anne Troyer (who suffered from dementia) fled the

family home in order to stay with Lori Troyer. Approximately 10 days later, Lori Troyer

moved Anne Troyer into assisted living. Anne Troyer’s change in residence enraged

Timothy Troyer. He sent numerous angry text messages to Lori Troyer accusing her of

stealing their mother and calling Lori Troyer by a variety of vulgar names.

       Timothy Troyer’s animosity continued after Anne Troyer’s death. In response to a

text message regarding memorial services, Timothy Troyer dispatched a message stating,

“You are such a bad lady there’s a special place in hell for you and your idiot sister.”

Clerk’s Papers at 35. Timothy Troyer went on to state Lori Troyer and his other sister,

Irene Ornovitz, were both dead to him. He claimed both sisters “should be in jail . . .

Game on !!!!! . . . You have no idea what I’m going to do f*** you !!!!” Id.

       Timothy Troyer’s rancorous messages led Lori Troyer to file a petition with the

probate court seeking appointment of a neutral third-party administrator for the estate.

Timothy Troyer filed a counter petition, requesting to admit Anne Troyer’s will to probate

and to be appointed as personal representative. Lori Troyer objected to Timothy Troyer’s

appointment.




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No. 36238-8-III
In re Estate of Troyer


       After holding an evidentiary hearing, the probate court granted Lori Troyer’s

request for a neutral third-party administrator. The court found by clear and convincing

evidence that Timothy Troyer was “not capable of fulfilling the fiduciary duties” required

of a personal representative. Id. at 109.

       Timothy Troyer timely appeals.

                                        ANALYSIS

       Timothy Troyer’s primary argument on appeal is that the probate court lacked

authority to reject his appointment as personal representative because he was not

disqualified from service under RCW 11.36.010. According to Timothy Troyer,

RCW 11.36.010(1) sets forth the only bases on which a party may be disqualified from

appointment. Because he does not fall within any of the exclusions listed by this statute, 1

Timothy Troyer claims the probate court lacked legal and factual authority to deny his

petition for appointment as personal representative.

       Timothy Troyer’s argument fails as it is inconsistent with our case law holding

statutory disqualifications are not exclusive. State ex rel. Lauridsen v. Superior Court for



       1
          Parties disqualified under RCW 11.36.010(1) include: “Corporations, limited
liability companies, limited liability partnerships, minors, persons of unsound mind, or
persons who have been convicted of (a) any felony or (b) any crime involving moral
turpitude.”

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No. 36238-8-III
In re Estate of Troyer


King County, 179 Wash. 198, 204, 37 P.2d 209 (1934); In re Estates of Stotts, 133 Wash.

100, 104-05, 233 P. 280 (1925); In re Estate of Bredl, 117 Wash. 372, 375, 201 P. 296

(1921); In re Estate of Langill, 117 Wash. 268, 269-70, 201 P. 28 (1921).

       A personal representative, as administrator of an estate, owes a fiduciary duty to the

estate’s beneficiaries. See In re Estate of Jones, 152 Wn.2d 1, 11, 93 P.3d 147 (2004). The

probate court has authority to prohibit a party from serving as personal representative if

there is reason to believe the party will not comply with fiduciary obligations. Stotts,

133 Wash. 104-05; Bredl, 117 Wash. at 375; see also RCW 11.28.250. The court need not

wait for an actual breach of fiduciary duty in order to take protective action. The court can

“guard an estate against possible waste and loss” by appointing an appropriate

administrator. Langill, 117 Wash. at 269.

       Given Timothy Troyer’s clear hostility toward his co-beneficiaries, the probate

court appropriately refused to appoint Timothy Troyer as personal representative and

instead appointed a neutral third party. See In re Estate of Thomas, 167 Wash. 127, 133-

34, 8 P.2d 963 (1932) (Where animosity exists and would likely result in more litigation,

a neutral, third party may be appointed to administer the estate.). We therefore disagree

with Timothy Troyer’s primary claim of error.




                                              4
No. 36238-8-III
In re Estate of Troyer


       Timothy Troyer also argues he has a constitutional right to serve as personal

representative and, as a result, any restriction on his right must be subjected to strict

scrutiny. He cites no authority for this constitutional claim. It is at odds with the long-

standing rule that the right of a particular party to serve as administrator of an estate is

secondary to a beneficiary’s right to have the estate “‘administered and distributed in

accordance with law.’” Laurisden, 179 Wash. at 205 (quoting Langill, 117 Wash. at 270).

We decline to review the substance of Timothy Troyer’s unsupported constitutional

claim. RAP 10.3(a)(6); State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).

                              ATTORNEY FEES & COSTS

       Lori Troyer requests attorney fees and costs on appeal under RCW 11.96A.150 and

RAP 18.1. RCW 11.96A.150 allows costs and attorney fees in probate cases to any party,

from any party, and authorizes this court to “consider any and all factors that it deems to

be relevant and appropriate, which factors may but need not include whether the litigation

benefits the estate or trust involved.”

       We grant Lori Troyer’s request for fees and costs. Timothy Troyer’s arguments on

appeal lack legal and factual support. Long-standing precedent supports Lori Troyer’s

position that the probate court had authority to appoint a neutral estate administrator.

Given this circumstance, an award of fees is appropriate.


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No. 3623 8-8-III
In re Estate of Troyer


                                     CONCLUSION

       The order sustaining Lori Troyer's objection to the appointment of Timothy Troyer

as personal representative, and appointing a third-party administrator, is affirmed. Lori

Troyer's request for attorney fees and costs is granted.

       A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




Lawrence-Berrey, C.J.




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