What you should know about Probate...
Probate is a court-supervised legal process where the estate (i.e. property) of a deceased person is administered - a personal representative is appointed, heirs are identified, creditors and taxes are paid, and the remaining assets are distributed to the heirs. Probate provides an orderly process for settling the affairs of a deceased person according to state statutes and resolving any disputes. Probate in Washington is entirely discretionary and is relatively quick and easy compared to other states. If a probate is filed in Washington State, it is because someone wants it to be filed and not because Washington law mandates it. While you may not open a probate, it is important to take the proper legal steps to transfer ownership of any assets held by a deceased person, especially real property. This is true even if you are the surviving spouse. At a minimum, Washington law requires that you file the deceased person’s will with the court.
As attorneys working in estate planning, we are sometimes asked by the court or recruited by another attorney or the personal representative identified in the will of a deceased individual to oversee the probate process. Through the probate process, the assets are collected and inventoried, debts are paid, and the remainder is distributed to the identified legal heirs of the decedent. Probate is particularly important if there are many debts or there are disputes over who is entitled to the estate.
Washington State statutes provide guidance for both attorneys and personal representatives that include expectations and guidelines for duties. Assuming the decedent has an executed Last Will and Testament, the terms of the Will dictate how the probate assets are distributed and usually designates a personal representative to administer the decedent's wishes. Non-probate assets, such as those held in a trust, or those with beneficiary designations (i.e. life insurance, IRA), pay on death beneficiaries, or owned as joint tenants with right of survivorship will be distributed without going through probate.
If no Will has been executed during the decedent's life, Washington’s intestacy statutes dictate how the assets are distributed. In addition, the court appoints someone to serve as the administrator when there is no Will or no one named in the Will.
If there is a will and if a personal representative is identified in the will, that person is appointed by the court as the administrator, assuming there is no objection. This personal representative, sometimes working with an attorney, manages the probate. The court requires notification of potential heirs and creditors and provides an orderly process for paying legitimate creditors and then allowing distribution of assets to the heirs. Sometimes the court grants the administrator the power to administer the probate without further intervention of the court, but occasionally the court will monitor the process closely, possibly appointing an attorney administrator. The personal representative / attorney must obtain court approval of most actions in this case.
If someone feels that the decedent's Will was not validly executed or was obtained by undue influence or when the decedent did not have capacity, they have the right to contest the will according to Washington's defined legal process. Once all the disputes are resolved, the court will then close the probate and distribute assets and distribute fees as reported to the court.
Proper estate planning is designed to minimize or remove the likelihood of probate and most importantly disputes in probate. Avoiding probate reduces administrative costs and expedites and facilitates the transfer of inheritance as dictated by the decedent's wishes.
For additional probate-related information, see the Frequently Asked Questions (FAQs).