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You're Not Nominated in the Will

Starting a Probate When You're Not Nominated in the Will

If there is a will, but the person nominated in the will as personal representative fails to petition the court for appointment within 40 days after death (because they don't want to serve or are deceased), the court will appoint any "suitable person" as administrator of the estate, giving him or her "Letters of Administration with Will Annexed," rather than "Letters Testamentary." The process for getting appointed and obtaining nonintervention powers is similar to situations where there is no will. Also, the court will often require the administrator to obtain a bond before being appointed. However, once appointed, the process for administering the estate is the same as if you were appointed as "personal representative" with Letters Testamentary.

This page describes the process of getting appointed as Administrator when you are not nominated as personal representative in the will.

Getting Appointed

If there is a will, during the first 40 days, the law allows the named personal representative, or alternate(s) if primary PR is unable to serve, to be appointed to administer the estate. If no one makes application with the Court within 40 days, any "suitable person" can make application to serve. If the nominated individual and alternates are deceased, and you are still in the initial 40 day period, I recommend that you follow the priorities set out in RCW 11.28.120, namely, the surviving spouse is able to apply first, followed by children, parents, siblings, grandchildren and nieces and nephews. After 40 days, however, any “suitable person” can make application and be appointed by the Court without prior notice to any of the heirs or beneficiaries. However, to get nonintervention powers, which you really want, you need to give prior notice of that request.  

Getting Nonintervention Powers

Nonintervention powers is the key to being able to administer the estate efficiently and cheaply. Therefore, getting appointed as the Administrator is not enough. You want nonintervention powers too. To obtain nonintervention powers when you are not named in the will requires that you give notice to all of the heirs and beneficiaries that you plan to ask for nonintervention powers. This is described in RCW 11.68.041. This notice requirement can be accomplished in one of two ways: with waivers or with a scheduled hearing.

WAIVERS

The easiest way to obtain nonintervention powers when you aren't the nominated personal representative is to get waivers from all of the heirs and beneficiaries 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 on the Documents page. Each heir and beneficiary of the estate must sign a separate waiver. In each waiver, your family member needs to specifically waive their right to notice of the hearing. 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 and beneficiaries, 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 and beneficiaries, which should include at a minimum the Case Designation Coversheet, the correct Ex Parte Notice of Court Date for Kent or Seattle, Verified Petition, Proposed Order, Death Certificate, Notice of Request for Nonintervention Powers, and Declaration of Mailing. These documents can be found at the Documents page of this website. 

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 and beneficiaries: The Ex Parte Notice of Court Date for Kent or Seattle, Verified Petition, Proposed Order, 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.

Next, 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.

What about a Bond?  

Since the will doesn't say that you are supposed to be appointed without a bond, the Commissioner is required by law (RCW 11.28.185) to consider whether you should be required to get a bond before getting your Letters of Administration with Will Annexed. 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 with Will Annexed, 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. 

Who are the heirs and beneficiaries?

If you aren't the named personal representative in a will and want nonintervention powers, you must first get waivers from each of the heirs and beneficiaries of the estate or you must give all of them proper notice that you are asking the Court to give you this power. So you need to know who the heirs and beneficiaries of the estate are. 

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 she 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 easier to understand: They are the people entitled to a portion of the estate under the will. This is often the same people, but doesn't have to be. Note that "beneficiaries" can also describe recipients of nonprobate assets, but the notice requirement for nonintervention powers under RCW 11.68.041 applies only to beneficiaries under a will. 

 

Photo by Jason Leung on Unsplash