WHAT IS PROBATE AND IS MY ESTATE SUBJECT TO PROBATE?
IS “PROBATE” NECESSARY AT DEATH?
“Probate” is a protective, court supervised, legal process established by the state to oversee the settlement of an individual’s estate at death. During this process, “a Personal Representative” is appointed to “administer,” or manage the “assets” of a decedent, who resided and owned assets in Washington. Administration includes: collection and valuation of the estate assets, payment of the decedent’s bills, investigation and settlement of tax issues, and finally distribution the estate according to the terms of the decedent’s Will, or by the state rules of “intestacy” if the decedent died without a Will.
Though it sounds simple, the Personal Representative is required to carefully follow the laws and procedures established by the state of Washington. This includes providing proper notice to family members and persons named in the Will and following special procedural probate rules established by the Court. Below are some common questions that arise:
How do I know if probate is necessary?
Is there a Surviving Spouse?
A probate is not always needed upon the death of the first spouse. The title of property owned by the decedent usually indicates the types of procedures necessary to settle the estate. Typically, spouses are named as co-owners on bank accounts, brokerage accounts and real estate. Sometimes spouses have executed a “Community Property Agreement” which can effectively vest all interest in the surviving spouse upon the death of the first spouse; or the title is held as “joint tenants,” which requires only a simple document to finalize a transfer into the survivor’s name; or if the total assets consist of tangible property valued at less than $100,000, no formal probate is required.
However, there are many situations where a probate is required or even recommended. For example, if the deceased spouse designates assets in his or her Will to be distributed to another individual besides the spouse, if the Will contains a testamentary trust for one or more heirs, or if the Decedent leaves separate property assets to third parties. Additionally, probate may be advisable for estates with post-mortem tax planning needs, or creditor issues.
Is there real property?
If the Decedent owned real property, i.e., a residence, vacation home or investment property, a probate is usually necessary to clear title. Without a probate, the Administrator will not have authority to transfer or sell the property.
Is the value of the estate over $100,000?
In some circumstances, we can gather estate assets through a “Small Estate Affidavit” instead of probate. However, the value of the decedent’s estate, subject to probate, must not exceed $100,000. Other caveats and rules associated with this provision, may also apply.
If I have a Will, can I avoid probate?
A Will does not allow you to avoid probate in Washington. Instead, the Will provides your instructions for how you wish your estate to be administered and distributed, and who should be appointed as Personal Representative, i.e., the person or entity who will manage the process.
How long is probate?
The duration of a probate is not fixed. A probate is concluded after satisfaction of each step required by the State of Washington, and this can take from four months at the least, to several years at the maximum. The statutes allow a person to challenge the Will or challenge the proposed Personal Representative’s appointment up to four-months after commencement of the probate proceedings. Additionally, the Personal Representative is required to publish a “Notice to Creditors” if it is likely that the Decedent had any debts at death. A Creditor then has four months after the publication to file a Claim against the estate, and if a Creditor fails to file a claim within this period the debt is extinguished. Estate Taxes, both Federal and Washington, if any, must be paid and a tax return filed nine months after death. These are the fixed filing deadlines within a probate proceeding. As soon as all estate assets are marshalled, creditors and taxes paid, the Personal Representative may file an estate accounting and petition the Court to finally distribute the estate assets in accordance with the Will, or the rules governing intestate succession, if the decedent died without a Will.
Is the estate “testate” or “intestate”?
A “testate” estate is an estate in which the decedent died with a Will. By contrast, an “intestate” estate occurs when the decedent did not leave a validly executed Will. If the decedent left a Will, then the assets are distributed in accordance with the terms of the Will, and if the decedent died without a Will, the estate assets are distributed in accordance with Washington’s default law dividing the estate assets among “intestate” heirs, defined according to traditional family relationships.
What is a “Personal Representative”?
A “Personal Representative” is the person nominated in the Will to administer the estate, often also called the “executor,“ or if female, the “executrix,” under earlier law. These persons have no authority until they are appointed by the Court, after the Court reviews the Personal Representative’s filing a Petition for Probate. Once appointed, the Personal Representative receives “Letters Testamentary,” which evidence the appointment and become the license authorizing the Personal Representative to exercise control over estate assets.
What is an Estate Administrator?
An “Estate Administrator” is a person appointed by the Court to act with the same types of authority over an intestate estate as the Personal Representative. Although individuals may act as a Personal Represtative or as an Estate Administrator without being represented by an attorney, the probate procedural rules are complex, form driven and tricky to navigate, so most people are best served by retaining legal counsel. If you have questions about an estate, our attorneys can help you settle any probate issues. We represent Personal Representatives, Administrators, as well as Beneficiaries in probate matters.
