Answers to some common questions.
Probate is the procedure of asking the court to give someone authority to administer the assets and affairs of someone who has passed away. The court will appoint someone as the executor or personal representative of the estate. The personal representative then gathers assets and determines what creditors need to be paid. When those issues are resolved, the personal representative arranges for distributions to heirs.
A probate is usually necessary when 1) the Decedent left real property in this State that is not subject to a community property agreement, a transfer on death deed, or a joint tenancy with rights of survivorship or 2) the value of Decedent’s assets, minus the debts and liabilities, exceeds $100,000. This is true even if the decedent was married or if the decedent left a will. Probate is the process to actually transfer ownership of the property from the decedent to the heirs. If the decedent was married and all the property was community property (owned with the spouse), the law says that the property should pass to the surviving spouse, but it doesn’t automatically transfer without a probate. The same is true of a will—a will simply states how the decedent wanted their property to be distributed, but the will itself doesn’t actually make the distribution happen. The probate court gives someone authority to gather the decedent’s assets and transfer them to the rightful heirs, whether that be the surviving spouse or other individuals named in a will.
Unless the spouses created a community property agreement while married, probate is still often necessary to transfer assets to the surviving spouse. Title to the family home, for example, is commonly held in the names of both spouses as tenants in common. Even if the home is community property, title to the home still doesn’t automatically vest in the name of the spouse without recording a deed. Probate in this circumstance will often be very simple, but you should still talk to an attorney about the details to avoid problems down the road when the second spouse has also passed away. If the deceased spouse had any separate property, there are additional issues that should be discussed.
A probate may be opened by the Personal Representative named in the Will. If that person is unable or unwilling to administer the estate, they should sign a DECLINATION TO SERVE. The probate may then be opened by any alternate Personal Representative named in the Will. If there is no alternate named, or if there is no Will, then any family member, close friend, or even a creditor may open the probate.
There is a popular perception that probate should be avoided because the assets are tied up for years and the lawyers end up getting it all anyway. This simply is not true in Washington. Washington probate is usually not complicated. Probate attorney’s fees in Washington are based on the amount of time spent (other states allow attorneys to charge a percentage of the total value of the estate). In most cases, probate is done without court intervention, meaning that the court only gets involved to appoint a personal representative and if there is a dispute. A probate is often open for several months before it is complete (due to a 4-month creditor claim procedure that is usually used) but in the right circumstances preliminary distributions can be made before everything is complete. Of course, where there are disputes among the heirs or other problems with the probate, attorney’s fees and time required will increase, but these issues are not the rule.
Some kinds of property pass automatically to a designated beneficiary. This is called nonprobate property. It includes such things as life insurance proceeds or retirement accounts with a named beneficiary. Property held with rights of survivorship can also pass outside of probate. Otherwise, most property is transferred from the estate to the heirs by a personal representative appointed by the court through the probate process.
Death does not change who is liable on a debt. In other words, if the deceased person was the only one liable for the debt before he or she passed away, then his or her estate is the only entity liable to repay the debt after death. Some unscrupulous debt collectors will try to intimidate family members into paying debts from their own funds by suggesting that the family is somehow liable to pay everything the decedent owed. Talk to an attorney if someone is trying to get you to pay a debt incurred by your family member.
You are not required to hire an attorney. Probate in Washington is usually straightforward. If you want to take the time to learn the rules and procedures involved, then you might be able to open probate on your own. The intent of this site is to provide some information to enable people to handle simple probates on their own if they choose to do so. However, there are benefits to hiring an attorney. Representing yourself takes time and can be stressful. Attorneys have years of experience dealing with the legal issues relating to your matter and they know the procedures and personalities of the court. Hiring an attorney puts that experience to work for you and takes some of the burden off your shoulders.