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 succession. RCW 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 90 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 90 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. Ninety 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 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. The process of getting appointed without scheduling a hearing is described on the Initial Hearing page.
SCHEDULING A COURT HEARING
If you are unable to obtain 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 schedule a hearing, file the appropriate documents, mail all of the documents to the heirs before the hearing, and appear for the hearing. This process is described on the Initial Hearing page.
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?
When there is no will, the Commissioner will consider whether the Administrator must obtain a bond before the Clerk issues Letters of Administration. Under RCW 11.28.185, the Court may waive bond in many cases. If you are appointed as an individual under RCW 11.28.120(3), which is the the provision allowing appointment of “any suitable person” after 90 days, bond is required. The Commissioner will need information about the estate’s assets to decide whether to require a bond and, if so, in what amount. Your petition should provide that information.
A bond protects people interested in the estate if the Administrator takes or wastes estate assets or otherwise fails to carry out the Administrator’s duties. Those people may include heirs and creditors.
If the Court requires a bond, you must obtain it before the Clerk issues Letters of Administration. You will then need to return to Ex Parte to have the Commissioner approve the bond. You can search for “probate fiduciary bond” to find companies that issue them. The premium depends on the amount of the bond and the bonding company.
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