Probate is how an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person's Will. Once appointed, this person, called a Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.
The purpose of probate is to prevent fraud after someone's death. Imagine everyone stealing the castle after the Lord dies. It's a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid, and that all the taxes have been paid. Once all that's been done, the court issues an Order distributing the property and the estate is closed.
Not all estates must go through probate though. First, if an estate falls below a certain threshold, it is considered a "small estate" and doesn't require court supervision to be settled. Second, not all assets are subject to probate. Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:
* Joint Tenancy Assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called "right of survivorship." For example, if a house is owned this way, "Jane Doe and John Doe, as joint tenants," and Jane dies, John owns the entire house.
* Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.
* Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
* Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.
Third, if a decedent had created a Living Trust to hold his or her largest assets, than that estate, too, won't go through probate, unless the assets left outside of the trust add up to more than Washington's small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust's Grantor.
But for estates in Washington that exceed the small estate's threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate will be required before an estate can be tranferred to the decedent's heirs or beneficiaries.
The general procedure required to settle an estate via probate in Washington is as follows:
The Will must be filed with the Superior Court.
A Petition for Probate must be filed with the probate court as well. This requests the appointment of a Personal Representative. If there is no Will, the Court will appoint someone to serve as the Personal Representative of the estate.
The Court will issue "Letters Testamentary" to the Personal Representative--this gives the PR legal authority to act on behalf of the estate. In certain circumstances, the Petition can request that the court grant the PR the power to administer the estate with non-intervention powers. This allows the PR to essentially administer and close the estate without court approval.
There's no requirement that the PR publish notice of the probate to notify all creditors of the proceeding, but there's an advantage in doing so: that way creditors only have four months to make a claim. If the PR does not publish, this claim period extends for two years.
An inventory of the estate's assets must be prepared, listing the estate's assets.
Once all of the creditors and taxes have been paid, a Declaration of Completion is filed with the Court.
The PR is entitled to reasonable fees for their services based on the size and complexity of the estate, but since such fees are subject to income tax, many PRs forgo the fees.
If you have questions about how the probate process works in Washington, give us a call at 253.858.5434 to see how we can be of service.
