Screen Shot 2018-01-14 at 7.02.20 PM.png

Probate with No Will

Opening a Probate with No Will

When someone passes away with no will, administering the estate is no different than if there was a will. You still must give notice to the heirs, manage creditors, handle taxes, and close the estate properly. When it comes to dividing the estate, however, instead of following a will, you follow Washington's default law on how to divide the estate, which is called the law of intestate successionRCW 11.04.015. The process for getting someone appointed, however, can be more complicated if you don't have a will. Also, the court will often require the administrator to obtain a bond before being appointed.

This page describes the process of getting appointed as an Administrator, getting nonintervention powers, and handling the issue of the bond. 


Getting Appointed

During the first 40 days after the date of death, the law sets out a priority of individuals who can be appointed as Administrator of the deceased person's estate. The order is: the surviving spouse, children, parents, siblings, grandchildren and nieces and nephews. RCW 11.28.120. Therefore, during the first 40 days, the children cannot make application to serve if there is a surviving spouse, although the spouse can waive his or her right to serve (you can find a sample waiver on the Documents page). Also, the decedent’s brother and sisters cannot make application to serve if there are surviving children. But the children too can waive the right to serve. Forty days after death, however, everything changes. Then, any “suitable person” can make application and be appointed by the court. No prior notice is required to be appointed administrator. However, obtaining the all important nonintervention powers does require prior notice of the hearing on the petitioner's request for such powers. 

Nonintervention Powers

Nonintervention powers is the key to being able to administer the estate efficiently. Therefore, getting appointed as the administrator is not enough. You want nonintervention powers too. To obtain nonintervention powers when there is no will requires that you to give notice to all of the heirs and beneficiaries that you plan to ask for nonintervention powers. This can be accomplished in one of two ways: with waivers or with a scheduled hearing.


WAIVERS

Far and away the easiest way to obtain nonintervention powers when there is no will is to get waivers from all of the heirs of the estate. If your family is cooperating and they agree that you should be the administrator of the estate, this will be relatively easy. A sample waiver can be found here (PDF) (Word). Each heir of the estate must sign a separate waiver. In each waiver, your family member needs to specifically waive his or her right to notice of the hearing. If you are able to get waivers from everyone, you do not need to schedule a hearing, but can go to the Initial Hearing at any time. At the Initial Hearing, you will need to bring each of the waivers to the Ex Parte Courtroom at “Step Two” for the Commissioner to review. Then you will need to file them with the Clerk at "Step Three." 

SCHEDULING A COURT HEARING

If you are unable to obtain separate waivers from all of the heirs, you should consider hiring an attorney to help you through this process. But if you insist on doing this yourself, you will need to follow these steps to schedule a hearing on your request for nonintervention powers and appointment as administrator (technically you could get appointed first without notice and then later ask for nonintervention powers at a scheduled hearing, but that isn’t discussed here). This is the process for scheduling a hearing:

First, complete all the documents you will need to file and serve on the heirs, which should include at a minimum the Case Designation Coversheet, the correct Ex Parte Notice of Court Date for Kent or Seattle, Verified Petition (no will), Proposed Order (no will), Death Certificate, Notice of Request for Nonintervention Powers, and Declaration of Mailing. These pleadings can be found on the Documents page. 

Next, file the Petition and Case Designation Coversheet and pay $240 at the Clerk’s office to get the case filed and to get a case number. Now that you have the case number, you can put that number after "No." in the case caption which is on the first page of each set of documents that you prepared previously. 

Next, no later than 17 days before the hearing, mail all of the documents to each of the heirs: The Ex Parte Notice of Court Date, Verified Petition (no will), Proposed Order (no will), Death Certificate, Notice of Request for Nonintervention Powers, and Declaration of Mailing. The Request for Nonintervention Powers must comply with RCW 11.68.041(3). If you personally serve the heirs with the documents, you only need 14 days, but mailing is easier. 

No later than 14 days before the hearing, file the documents you mailed to the heirs at the Clerk's office.

Then, no later than 7 days before the hearing, drop off the same set of documents that you filed with the Clerk's office and mailed to the heirs to the Ex Parte Courtroom in Seattle or Kent (depending on which courthouse your case is assigned to). These are the Commissioner's "Working Papers." Be sure to write in the top right hand corner of the first page of each set of documents the date and time of the hearing. These are the documents that the Commissioner will review before your hearing. The Commissioner is not expected to review the court file, so don’t expect that to have happened. The Commissioner will likely only review your "Working Papers" and any pleadings submitted by any other party. 

Finally, arrive on time to your scheduled hearing and hand your proposed Order to the clerk in the Ex Parte Courtroom. Have a seat and wait for the Commissioner to call your case. Probate hearings are scheduled at 10:30, Monday-Friday, in King County.

Who are the heirs?

Whether you plan to collect Waivers from all of the heirs of the estate, or set a court hearing with notice to all of the heirs of the estate, you will need to know who qualifies as an "heir." The heirs of the estate are the people who are entitled to a share of the estate if there is no will. See RCW 11.02.005(6) and RCW 11.04.015. This is also called the “intestate" heirs. For instance, under the laws of "intestate succession," if your mother passed away and left no surviving spouse, but did leave behind three surviving children, then the three surviving children are your mother’s heirs. If one of the children passed away before your mother and left a child living, then that grandchild would also be an heir. But if the surviving children also have children, those grandchildren are not heirs because their parents are living. This set of preferences is described at RCW 11.04.015. The term “beneficiaries” is a little different. They are the people entitled to a portion of the estate under the will or under a nonprobate asset. These are often the same people, but not always. 


What about a Bond?  

Since you don’t have a will, the Commissioner is required under RCW 11.28.185 to consider whether you should be required to get a bond before getting your Letters of Administration. In determining the amount of bond, the Commissioner will generally require you to provide a preliminary inventory of the estate. The Petition you provided to the Commissioner should contains this information.

The bond requirement is intended to protect those parties interested in the estate from the risk that you, as the administrator, will take or waste estate assets or otherwise mismanage the estate unlawfully. Those parties could include beneficiaries, creditors, taxing authorities or professionals assisting the estate, such as attorneys or accountants.

If the court requires a bond, you will need to obtain one before the Clerk will issue the Letters of Administration, and then return to Ex Parte to have the bond signed by the Commissioner. If a bond is required, you can obtain one from various bonding companies in the Seattle area. You can google “fiduciary bond in probate” to find some companies that can help. For a typical $10,000 bond, these companies will often charge about $100.00 a year for the premium. 

 

Photo by Mark Olsen on Unsplash