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An Overview of the Washington probate process
Written by John Palmer, Elder Law Attorney
Probate generally includes any court procedure pertaining to the administration of estates. The process usually begins by filing the decedent’s original Will with the court, obtaining an order declaring it to be valid, and appointing someone (usually named in the Will) to administer the estate.
Upon their appointment, the administrator has several duties, including preparation of an inventory of the decedent’s assets; paying creditors who have filed proper claims with the estate; preparing tax returns for any income or estate taxes that may be due; and distributing the remaining property to the heirs entitled to receive it.
In preparing an estate inventory, the administrator lists the value of each asset as of the date of death. The total estate value may be important for tax purposes, so the administrator often obtains appraisals of valuable assets, such as real estate or jewelry.
Careful thought must go into making distributions to heirs; the administrator must make sure distributions do not render the estate insolvent. On the other hand, holding onto assets unnecessarily can create a tax liability for the estate, and deprive heirs of the use of the property when there is no need to do so.
The process is similar in situations where the decedent dies without a Will. An administrator is appointed, usually a family member or close friend; the administrator prepares an inventory, pays just debts and taxes, and distributes the remainder to the heirs.
State statutes determine how the net estate is to be distributed when no Will exists. In Washington State, how the property is divided depends on whether the decedent’s property is community property or separate property, and whether the decedent is survived by a spouse and/or children. A surviving spouse receives all community property; if there are children, one-half of the decedent’s separate property goes to the surviving spouse, and one-half is divided among the children. If the decedent dies without a spouse or children, the property goes to parents, siblings, or other blood relatives based on a formula set forth in the statute.
If certain conditions are met, the administrator can be granted nonintervention powers by the probate court. One condition is the estate must be solvent; i.e., assets must exceed liabilities. Nonintervention powers give the administrator greater freedom to act without first seeking permission from the court, thereby reducing the costs of administration. For example, an administrator without nonintervention powers must obtain a court order authorizing the sale of real estate; an administrator with nonintervention powers can sell real estate without first obtaining court permission to do so.
After all of the administrator’s duties have been fulfilled and the remaining property has been distributed to the heirs, the estate is closed and the administrator’s powers cease.
The administrator is entitled to a reasonable fee for his or her services; in cases where a surviving spouse or adult child administers the estate, the fee is often waived unless the duties proved to be unusually burdensome.
Alternatives to Probate
Ownership of some assets may pass automatically to certain individuals upon the decedent’s death; if all property passes this way, probate can be avoided. Life insurance is one example; the death benefit is paid automatically to the beneficiary named in the policy. Such assets are called nonprobate assets, because they pass to beneficiaries outside of the probate process. However, nonprobate assets in most cases, including life insurance are still included in the decedent’s taxable estate; in other words, nonprobate assets are included when determining whether or not the decedent will owe any state or federal estate taxes.
Other examples of nonprobate assets include property that is jointly owned with another as joint tenants with right of survivorship, and property held by a revocable living trust; technically, the trust, not the decedent owns the property in the trust, and the trust document dictates who owns it after the decedent’s death. However, as mentioned above, the trust property is still included in the decedent’s estate for tax calculation purposes.
There is a lot of controversy about the benefits of revocable living trusts. They are not for everyone. Many people do not realize that in order to use a revocable living trust as a way to avoid probate, all assets need to be transferred into the trust. Probate may still be required, despite the existence of a revocable living trust, if the person establishing the trust owns a large asset (such as a house) that is not titled in the name of the trust.
A community property agreement may provide that all of the decedent’s property is community in nature and passes automatically to the surviving spouse upon the decedent’s death, thereby avoiding probate upon the death of the first spouse. Community Property Agreements are not advisable where a couple may be subject to estate taxes, as the Agreement foregoes any of the typical tax planning devices that can eliminate or reduce estate taxes.
For estates with probate assets of $60,000 or less, these assets may be transferred to the heirs by use of an affidavit, signed by one of the heirs, stating (among other things) that the person signing the affidavit is entitled to the asset or is acting with the written authority of all other heirs with an interest in the asset.
Conclusion
This article is intended to be a very general overview of the probate process in Washington State; it is provided for informational purposes only and is not intended to constitute legal advice to any reader. Many specific details about the various duties imposed upon estate administrators, as well as specific factors to consider when drafting a Will, revocable living trust, community property agreement, or other estate planning document have been omitted because the factors to consider are too numerous to mention; I strongly recommend that you consult with an attorney before drafting any of these documents, or attempting to transfer property belonging to a decedent, through the probate process or otherwise.
This article was provided compliments of John S. Palmer
Office: 425-455-5513
Toll Free: 877-455-5513
Email: john@palmerlegal.com
Web: www.palmerlegal.com
Address: 800 Bellevue Way NE, Suite 300
Bellevue, WA 98004
For specific legal guidance regarding probate, or if you wish to seek means for minimizing or avoiding probate, please call visit one of the Elder Law Attorneys listed at: Attorneys and Elder Law
Last update: 2007-05-05 22:07
Author: Tech Support
Revision: 1.2
