Probate is the legal process of settling an estate once someone dies - paying their creditors and transferring their remaining assets to their heirs and beneficiaries. In Washington and Idaho, probate is a well-defined and orderly process prescribed by law.
When someone dies and leaves a valid Will, it is admitted to probate by the Court and a Personal Representative ("PR") is appointed to settle the estate and distribute the assets as stated in the Will. If someone dies without a Will, the Court applies the laws of intestacy to determine how their property will be divided. Intestacy laws may limit inheritance by a spouse when the decedent had assets they maintained as separate property; those owned prior to marriage, inherited or received as a gift during marriage, or if the decedent had children by another relationship.
If you've heard of probate, what you may have heard was probably not very positive. However, in some instances, avoiding probate may not be the right plan for your estate. Yet, some businesses market “probate avoidance” devices like revocable living trusts. These are difficult to maintain and even if you have one of these trusts, you will not always be able to avoid probate of your estate.
There are numerous misconceptions about probate, so you need to know how to separate fact from fiction.
Misconception 1: Probate should be feared and avoided. It is true that, in some states, probate can be an onerous and expensive process. Fortunately, Washington and Idaho are not among those states. Probate in Washington and Idaho is much easier than it is in other states, and often the appropriate process for administering an estate. It can be necessary and helpful in situations where a Supplemental Needs Trust needs to be established for a surviving spouse or disabled child who requires long term care or receives public benefits.
Complicated estates with considerable assets are typically best handled via probate. If your estate needs creditor protection or there is dissension among your heirs and beneficiaries, the third-party oversight of the court and probate law will minimize difficulty for your estate.
Misconception 2: Probate is always a long, drawn out process. Many people believe that “probate” is synonymous with lengthy court proceedings. This is usually not true. Depending on the language of the Will or if the court allows, the PR can serve with nonintervention powers, which means with legal authority to act without court oversight unless necessary. Sometimes the length of probate depends on whether it is desirable to utilize the benefits of state creditor protection law, which requires your Personal Representative to notify reasonably ascertainable creditors of the impending probate proceedings, but restricts the amount of time they have to present their claims or be forever barred to four months from probate filing. A typical probate in should last six to nine months.
If you have questions about probate in Washington or Idaho, give us a call at 253.858.5434 to see how we can be of service.