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Getting Started

What is a probate?

If you’re not a lawyer and don’t understand what a probate is, don’t feel bad. Most lawyers don’t know either. Unless you practice in the area regularly, there is little need for you to know much about it. Here is how I describe a Washington probate to clients: It is a legal process by which a person is appointed by the court to sell or transfer a deceased person's belongings, pay all of the bills, and then distribute the remaining assets according to the person's will. If there is no will, you distribute the assets according to Washington's default law on distribution to heirs. Seems simple, right? Kind of, but in return for that simplicity, the person who is appointed needs to carefully follow the law, including sending out the appropriate notices to the other people interested in the estate so they can defend their rights if needed. Washington courts do not normally supervise the administrator of the estate. The administrator is on his or her own. But failing to follow the rules can get you in trouble and can sometimes be costly. 

Myth: If I don’t have a will, the state will get everything.

Many people think that if there is no will, then "the state will get everything." Not true. When a person dies with no will, his or her estate is distributed to the person's "heirs" as defined by state law. In Washington, the "heirs" are who you'd expect: the surviving spouse, children, grandchildren, parents, siblings, etc., in that order. RCW 11.04.015. Furthermore, taxation issues are the same regardless of whether the decedent left a will. The administration of the estate is also similar with or without a will. Getting a person appointed, however, can be slightly more complicated. That process is described on the No Will page of this site.

Myth: If I have a will, I don't need a probate.

Whether you need a probate has nothing to do with whether there is a will. The need for a probate is dependent on many other factors that are best assessed by a probate attorney. But generally, a probate is needed when you have assets that can only be obtained by a person with Letters Testamentary (which you can only get by opening a probate) and who has taken on the responsibility of conducting the probate properly.

How long is a probate?

There is no set time period that a probate must remain open. It is a matter of how long it takes to accumulate the decedent’s assets, get his or her name off of titles to property, sell assets, pay all creditors, and take care of taxes. This need not take a long time. When there is a house, it might take a while to sell the house. Also, if a Notice to Creditors is published, you’ll need to wait to finish the probate until the four-month claim period has expired. But other than that four-month claim period, nothing is driving the length of the probate except for how long it takes you to liquidate and distribute all of the decedent's assets and pay his or her bills.


Do you need a probate?

Before starting a probate, you should ask yourself whether one is really needed. This can be a complicated question that is best answered by a probate attorney. But here are a few basic questions that can help you get started analyzing this issue.

Are you a surviving spouse?

Often, a surviving spouse doesn't need to probate a deceased spouse’s estate. Typical spouses have both names on bank accounts and real estate. Or they have executed a Community Property Agreement, which vests all property in the surviving spouse upon the death of the other spouse. When both spouse’s names are on bank accounts or real estate, the surviving spouse rarely has any problem gaining access to the bank accounts, and there are other ways to sell real property when that time comes (through a process called a Lack of Probate Affidavit). A probate might be needed, however, when the deceased spouse had separate accounts or wanted certain assets to go to people other than the surviving spouse. A probate is also sometimes needed for wealthier couples who want to set up a tax sheltering trust upon the death of one of the spouses. 

Do you need Letters Testamentary?

The most common reason you will need to open a probate is when a bank or other financial institution tells you that the only way you can gain access to your loved one's funds is by providing them a document called "Letters Testamentary." The only way you can get this document is by beginning a probate and getting appointed as the personal representative or administrator of the estate.  

 

Did the decedent have any real property? 

When a person dies with real property (i.e., land or real estate), you usually want to transfer the property out of that person’s name and into the name of the heirs. Or you might want to sell it. Before you can sell real property or transfer it, you usually need someone appointed by the court to step into the deceased person’s shoes. The deceased person can’t sign a listing agreement with a real estate agent nor a deed transferring the property to the new owner. That’s one reason you start a probate: to have a living person appointed who can sign these documents. Just having a will is not enough. The will only nominates a person to serve as personal representative. The court appoints the person and gives him or her the power to act. Not all land transfers however require a personal representative be appointed, such as when there is a transfer on death deed or the land is owned in joint tenancy. These "nonprobate" arrangements for real property however are less common. For more information on those types of “nonprobate assets” visit the Nonprobate Assets page of this site. 

Did the decedent have less than $100,000 of probate assets at death?

If the deceased person did not have a large estate, you can usually gain access to the assets they left behind by using a small estate affidavit, but not always. For more information on this, visit the Small Estates page of this site.


Initial Goals

If you've decided you need to start a probate, you will need to have an Initial Hearing in front of a Commissioner in the Ex Parte Courtroom at the King County Superior Court. Samples of documents you might need are available on the Documents page, and a description of how to prepare for the hearing is described on the Initial Hearing page, along with comments on who is qualified to serve. In getting ready to begin the probate, you should focus on achieving the following three goals:

Receiving Nonintervention Powers

It is important that the court grant you "nonintervention powers." These powers allow you to manage the estate without having to seek court permission to do simple tasks, such as selling assets, paying bills or distributing assets to beneficiaries. It is the key to Washington's efficient probate system. Without it, you will need to file pleadings and ask permission from the Commissioner at the Ex Parte Courtroom before performing basic tasks of estate administration. If you have a will that names you as personal representative and does not restrict your ability to obtain nonintervention powers, the court will usually readily grant these powers to you. If you are not nominated in the will as the personal representative or if there is no will, you can still get these powers, but you'll need to do a few things first. If you don't have a will or if you aren't nominated as personal representative in the will, take a look under the Tricky Issues tab at the top of this page for more information.

 

 

 

Obtaining Letters Testamentary

You want the Commissioner to appoint you as personal representative of the estate and sign an order requiring the Court Clerk to issue you Letters Testamentary. This is the document that you will show financial institutions and other parties who are holding the decedent's assets to prove that you are the court appointed representative of the estate. 

Admitting the Will to Probate

If the decedent had a will, you want the court to admit the will to probate. If there is no will, be sure to visit the No Will page under the Tricky Issues tab above. Admitting the will to probate has particular significance. Most obviously, by admitting the will to probate, the court declares that this is the document that will control how the decedent's assets will be distributed. In addition, admitting the will to probate begins a four-month period during which a person may challenge the will. After four months, no one can challenge the will. See RCW 11.24.010. If you've been appointed, don't forget to follow the important notice requirements so the heirs and beneficiaries know that you've been appointed. See the Notices page for more details on this very important part of the probate process.


Important Terminology

Most people have heard of the term "executor." This is the person who is responsible for administering an estate. Washington State doesn't use this term anymore. Instead it uses the term "personal representative" to refer to a person appointed by the court to manage and  administer an estate. If you don't have a will or you are not nominated in the will to serve as personal representative, the court will use a different term to describe you. These terms are described below.  

Personal Representative 

A “personal representative” (also known as "PR") is the person nominated in a person's will to manage the estate. Upon this person’s appointment by the King County Ex Parte Commissioner, the Superior Court Clerk will issue this person “Letters Testamentary.”

Administrator

An “administrator” is a person appointed by the court to manage an estate when there is no will. This person receives “Letters of Administration” from the Superior Court Clerk. This document has the same legal import as "Letters Testamentary" and will be honored similarly by financial institutions and others as proof of the person's appointment to manage all aspects of the estate.

Note that when there is a will, but the court appoints someone who is not nominated as personal representative in the will, the court calls that person an “administrator" and the person receives “Letters of Administration with Will Annexed” from the Superior Court Clerk. Like with regular Letters of Administration, this document has the same legal import as "Letters Testamentary" and will be honored similarly by financial institutions and others as proof of the person's appointment to manage all aspects of the estate.


Finding Court Records

If you are trying to determine whether a probate has been filed, or if you are trying to find records filed in a probate matter, you will need to know the docket number of the probate case. If you don’t know that number, you need to visit the Washington Courts website first and search for the case name. Once you have the docket number, you can go to the King County Clerk’s web page on accessing records, which explains how you can get copies of records on-line, in person, or through the mail. While you can view pleadings on computer terminals at three different locations in King County for free, you must pay if you want copies of the documents.

Photo by Annie Spratt on Unsplash