Administrator. The term “administrator” refers to a person appointed by the court to administer a person’s estate when there is no will. The duties of an administrator are the same as a personal representative.
Agent. Your “agent” is the person you name in your power of attorney to manage your financial and/or health care matters. Under Washington law, this person can also be referred to as your “attorney-in-fact.”
Attestation. A will is valid if it is signed by the testator and two witnesses. However, before it can be admitted to probate, the witnesses must appear in court to provide testimony regarding the will signing ceremony. In the alternative, the petitioner can present the court with a document, in which the two witnesses swear or declare (i.e., “attest”) that they were present when the testator signed the will, they signed as witnesses in front of the testator, the testator wanted them to be his/her witnesses, the testator understood that this was his/her will, and that the testator appeared to be of sound mind. The attestation of the two witnesses can be either (1) notarized, or (2) can be in the form of a valid declaration.
Attorney-in-Fact. Your “attorney-in-fact” is the person you name in your power of attorney to manage your financial and/or health care matters. Under Washington law, this person can also be referred to as your “agent.”
Beneficiaries. If you have a will or trust, the people whom you name to inherit under these documents are described as beneficiaries. These may or may not be your “heirs,” who are the family members who would inherit under Washington’s default law on inheritance (see “Heirs”).
Bond. For probates, a bond is a type of insurance policy whereby a bonding company guarantees that if the personal representative is liable for any wrongful act, the bonding company will pay the harmed party up to the bond amount.
Codicil. An amendment to a person’s will is called a codicil. A codicil must meet all the requirements of an ordinary will, including being signed by the testator and witnessed by two people. To admit a codicil to probate, the court will require a proper attestation by the witnesses, as the court does with a will.
Community Property. Washington law generally defines community property as those assets that you and your spouse acquired during your marriage regardless of how the asset is titled. Separate property is defined as property that you acquired prior to the marriage, and property that you inherited or that was gifted to you even if the gift or inheritance was acquired during the marriage.
Community Property Agreement. A typical community property agreement is a document whereby you and your spouse agree on three basic principles: (1) that all assets that you currently have are community property, (2) all assets that you accumulate in the future will be considered community property, and (3) upon the death of the first spouse, all such community property will immediately vest in the surviving spouse. This is commonly used to make the transfer and acquisition of assets easier on the surviving spouse when the first spouse dies.
Declaration. A declaration is an unsworn statement that has the same validity under Washington law as a sworn statement. To be a valid replacement for a sworn statement, however, the written statement or declaration must include language certifying the declarant’s understanding that the declaration is made under penalty of perjury under the laws of the state of Washington, that the contents of the document are true and correct, and recite the date and location that the document was signed by the declarant. A declaration is often used in Washington instead of a sworn statement, in which a notary would be needed.
Disclaimer. A disclaimer is a written document in which someone rejects all or part of an inheritance. This document must be signed within nine months to be effective.
Guardian. A guardian is a person appointed by the court to manage the financial and/or healthcare affairs of a person who lacks the capacity to manage his or her own affairs. The court can select a person or a professional guardianship company to serve in this role, although often it is a close relative or friend who is acquainted with the incapacitated person and willing to take on this responsibility.
Guardian ad litem. A guardian ad litem is a person selected by the court to investigate issues on behalf of a child or incapacitated adult. If a probate is started in Washington, the court is required to appoint a guardian ad litem to look after the interests of any heir or beneficiary who is under the age of 18 or who is otherwise incapacitated.
General Bequests. A general bequest is a gift that must be paid out of the general assets of the estate. For example, a gift of $5,000 to a charity or a family member is a general bequest.
Health Care Directive (also Living Will). A health care directive informs doctors and your family regarding your preferences and directions for the administration and withdrawal of life-sustaining medical treatment in the event you have a terminal illness and you cannot speak for yourself or if you are in a permanent unconscious condition. These documents can vary in complexity, and can also include special directions for how you want to be treated if you are ever diagnosed with a mental health condition such as dementia or Alzheimer’s disease.
Heirs. The heirs of an estate are those individuals who are entitled to inherit your estate if you have no will. In such cases, Washington law describes how your estate should be distributed. For instance, under this law, your spouse would inherit all community property, and your separate property would be split between your spouse and children. If you have no children (and parents living), your spouse would inherit all separate property too. If you have no spouse, your children would inherit your entire estate. If you have no spouse or children, your parents would inherit your estate. This law goes on and on until there are no more descendants of your grandparents left to inherit your estate. Only then would your estate pass to the State of Washington, which is known as “escheating” to the state.
Inventory. An inventory is a list of assets that the decedent left behind with each item valued as of the date of death. Washington law requires the inventory to be separated by (1) real property, (2) stocks and bonds, (3) mortgages, notes and other written evidence of indebtedness owed to the decedent, (4) bank accounts and money, (5) furniture and household goods, and (6) all other personal property. If there are any mortgages or encumbrances on any of the property, that should be listed too.
Letters Testamentary. When a person is appointed by the court to serve as personal representative, the clerk will issue that person Letters Testamentary. This is a one-page document that can be used by the personal representative as proof that he or she has been appointed by the court and has the power to administer the estate.
Nonintervention Powers. These powers allow your personal representative to manage your 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, your personal representative would need to file pleadings and ask permission from the court before performing basic tasks of estate administration.
Nonprobate Assets. Nonprobate assets are assets that are not distributed through you will. These assets pass to beneficiaries according to a document or other instrument in which you direct how the asset is to pass upon your death. Among the most widely understood nonprobate assets are life insurance policies and retirement plans where you name a beneficiary through the plan or policy documents. Nonprobate assets can also include financial accounts that are held jointly with right of survivorship or have a transfer on death designation.
Personal Property. The term personal property refers to your assets that are not land or real estate. Personal property includes vehicles, boats, jewelry, artwork, furniture, electronics, bank accounts, stocks, etc.
Personal Representative. The term “personal representative” (also known as “PR”) is the modern term for “executor.” This is the person nominated in a person’s will to manage the estate. When confirmed by the court to serve as PR, this person is required to perform a number of tasks, including notifying the heirs and beneficiaries of his or her appointment, gathering and selling the estate’s assets, determining the value of the estate, handling the debts and taxes of the decedent, and distributing the assets according to the last will and testament. In most cases, a PR is a trusted, close relative or friend of the decedent, but can also be an institution like a bank or trust company. In selecting a PR, it is best to choose someone who has good organizational skills, who will follow the law and directions in the will, and is able to work effectively with lawyers, accountants, banks and financial advisors.
Power of Attorney. A power of attorney is a document in which you, as the “principal,” name another person to deal with third parties in handling your financial and/or health care matters. Powers of attorney can be made effective immediately upon signing of the document, or they can be made effective only when you are declared incapacitated. In these documents, you typically grant a person broad powers over your financial and health care affairs, but you can also limit the powers to particular tasks, such as selling your house. The person whom you grant these powers to is called the “attorney-in-fact” or “agent” in the document. People often refer to this person as their “power of attorney,” but that is technically incorrect.
Principal. The “principal” is the person who creates the power of attorney and grants an agent or attorney-in-fact the power to handle certain financial and/or health care matters for them.
Probate Assets. Probate assets are assets that are distributed to beneficiaries through your will. If you have no will, probate assets are the assets that pass to your heirs through Washington’s default law on inheritance (see “Heirs”).
Probate. Probate 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, the person appointed by the court distributes the decedent’s assets according to Washington's default law on inheritance.
Real Property. Real property includes land, real estate and items that are attached to the land, such as buildings and other permanent structures.
Residuary Bequests. In a will, residuary bequests are also referred to as the “rest, residue and remainder” of your estate, which is comprised of the gift you make after all specific and general gifts are made. Usually, residuary bequests are based on a share or percentage of what is left after your specific and general gifts are made. For example, a gift of twenty-five percent of your estate to a child is a residuary bequest and will only pass to that child after all general and specific bequests are made, assuming there is anything left.
Small Estate Affidavit. A small estate affidavit is a sworn document in which a person claims certain assets of a decedent that are being held by another party. The affidavit must meet the requirements of the state in which it is used. For example, Washington has many elements that must be in the affidavit, including the decedent was a resident of Washington, that the value of the probate estate is less than one hundred thousand dollars, and that all creditors have been handled, among other requirements.
Specific Bequests. A specific bequest is gift that you make through your will of an identifiable asset of your estate, such as a house, bank account, car, jewelry, etc.
Trust. Generally, a trust is a legal instrument in which a person or entity (the trustee) holds property for the benefit of another person (the beneficiary) pursuant to the terms of a written trust agreement. A trust can be a free-standing document, or it can be contained in a will (a testamentary trust), which becomes effective only when a person dies.
Trustee. A trustee is the person responsible for managing and administering a trust. The duties often include prudently managing funds contained in the trust, answering questions from beneficiaries, distributing assets of the trust, following the instructions in the trust, and paying the bills and taxes of the trust. A trustee can be a person, a trust company, or a bank.
Will. A will is a document in which you describe how your probate estate should be distributed at the time of your death. The will should also name a personal representative who will be responsible for carrying out the instructions in your will. To be valid in Washington, the will must be signed by you and two witnesses. It does not need to be notarized, but it should include an “attestation” provision where the two witnesses swear in front of a notary (or execute a valid declaration stating) that they were present when you signed the will, they signed as witnesses in front of you, you wanted them to be your witnesses, you understood that this was your will, and that you appeared of sound mind.