What is a Probate?
A probate is the process of proving a Last Will and Testament (a “Will”) in a court of law and making sure it is a publicly accepted document. Probate also covers the administering or resolving of the deceased property and/or debts. i.e. settling debts, selling property, and distributing the remaining assets to parties mentioned in the Will or in accordance with Washington State law.
Testator: A person who has written and filed a Last Will and Testament to take effect upon their death.
Executor / Personal Representative: The executor (or personal representative) of a Will is appointed by the testator in their Will to act on behalf of the testator as the legal personal representative upon their death. The appointment of the executor only becomes active after the death of the testator. Upon the testator’s death the executor may choose to accept or renounce their position. In the case of a renouncement, a probate court should be notified immediately.
Administrator: If the deceased did not create a Will, the legal personal representative is known as the administrator.
In Washington State a Will must be filed within 40 days of the testator’s death whether a probate is used. Probate durations can vary, based on how long it takes to assess, settle, and distribute the testator’s property and/or debts. If a Notice to Creditors is published, the executor or administrator will need to wait until the four months claim period has expired to finalize the probate and Will.
Do I Need a Probate in Washington State?
Going through the probate process is not required by law in Washington State. However, there are many situations where a probate should be filed.
Did the deceased have a will?
If the deceased did not have a valid Last Will and Testament at the time of their death, you will more than likely need a probate to ensure a fair and even settling of debts and allocation of assets.
Did the deceased own real estate?
If the testator owned land, buildings, stock and/or vehicles a probate will most certainly be needed. A legal personal representative is required in order to gain access to titles and other ownership documents and have the legal right to list them for sale and/or distribute ownership to parties listed in the will or in accordance to Washington State law.
Not all asset transfers will require a legal personal representative. In the case of transfer on death deeds or if the asset is joint owned, these non-probate arrangements might suffice.
Are there predeceased beneficiaries?
In the event that any or all the beneficiaries listed on the deceased’s will passed away prior to the testator’s death you will need a probate. This is also true if the predeceased are listed on any payable on death or similar accounts like: health savings account, medical savings account, life insurance, retirement accounts, etc.
Did the deceased have more than $100,000 of assets?
It is always recommended to file for probate if the deceased had more than $100,000 worth of assets upon their death.
Are you the surviving spouse?
In many situations the surviving spouse of the deceased will be listed on bank accounts and titles co-owned by both parties. If all assets are listed in both names a probate might not be needed. You may be able to also use the Lack of Probate Affidavit to affirm that the affiants are the rightful heir to the property in question.
Has a bank or other institution requested Letters Testamentary?
Letters Testamentary is a document issued by a probate court that grants an executor the power to act on behalf of the estate in financial matters. If a bank or other institution has requested Letters Testamentary you will need to have one issued by the probate court and provide it to the requester along with the death certificate.
In order to obtain Letters Testamentary you will need to file the will and death certificate to the probate court, together with the correct forms to request the Letters Testamentary.
Losing a loved one is hard enough without having to deal with a probate court and the documents required to pay debts and transfer assets fairly and equitably. It is highly recommended that you seek legal counsel before deciding whether you need a probate or not. The team at NorthStar Law Group, P.S. will first check for any existing filed probates for the deceased and then gather any and all documents needed to bring closure to the probate court process in your best interest.