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WA-Probate > Probate Instructions > Is a Probate Necessary?
--- Your "Roadmap" ---
How to Proceed
without Reading the
100 Page Instruction Manual
Is Probate Required by Washington Law?
Deal with Any Emergency Situation Requiring Official Authority
File Decedent's Will
Marshal, Inventory, Categorize, and ... Characterize All of Decedent's Assets
Distribute Decedent's Assets to Those Entitled to Them & Re-title Those Titled in Decedent's Name
Pay Decedent's Debts
Begin a Probate for Other Reasons
Circumstances Necessitating a Traditional Probate Proceeding (a "probate") in Washington:
Accessing Decedent's Safe Deposit Box
Distributing and Changing Title to Decedent's Probate Assets.
Paying Decedent's Debts
Prosecuting or Defending a Lawsuit in Decedent's Name
Circumstances Necessitating a Probate Elsewhere:
A Lawsuit or Property Outside of Washington
Possibilities for Avoiding a Probate:
• Administering Real Property by "Lack of Probate" Affidavit
A Probate May Be Advantageous or Necessary
With Nonintervention Powers
Without Nonintervention Powers
Determining Which Instructions & Forms to Use for Probating the Estate
The Simple Version
The More Detailed Version
A Special Circumstance: The Death of an Intestate Ward
A. Is Probate Required by Washington Law? ñ
Probate: Washington law does NOT require a probate proceeding
to be filed following death, regardless of whether the Decedent died with or
without a Will (ie, testate or intestate, respectively).
Probate in Washington is entirely discretionary, and probably only a
of deaths in Washington result in a probate being filed. In Washington, if
a probate is filed, it is because someone wants it to be filed, NOT because the
law requires it. This page describes what some of those reasons might be.
By far, the most common reason for probate is that the Decedent died holding:
real property titled in his or her own name, or
Personal property (usually a cash or securities account) titled in his or
her own name whose value exceeds $100,000. See:
Will: Washington law, however, does require any last Will of a Washington resident Decedent to be filed promptly following death. See: B.2 immediately below.
Typically, a third party (eg, a bank or brokerage) will tell you "You need Letters to access Decedent's account." Letters are the name of the document obtained from the Probate Court that authorizes you to act on behalf of the Decedent, as his/her Personal Representative. Obtaining Letters entails opening a probate for the Decedent's estate (ie, property held in his/her name). Before doing so, however, make sure that a probate is actually needed, or whether, despite whatever the third party says, a probate might be avoidable as described in Paragraph E below.
B. Introduction ñ
Someone (the "Decedent") has died and you believe something legal needs to be done as a result of the Decedent's death. Here's a summary of what may or does need to be done and why:
1. Deal with Any Emergency Situation Requiring Official Authority Before a Personal Representative Can Be Appointed (Unusual & Arcane but there if needed) ñ
Appointing a Special
Why? --- To take care of the emergency.
2. File Decedent's Will ñ
If Decedent died with a
Will, then Decedent's
Will is required to be filed with the Clerk's
Office of the Superior Court of Decedent's resident county at death
regardless of whether or not Decedent's estate will be probated. See:
Filing Decedent's Will.
--- Because Washington law requires it.
3. Marshal, Inventory, Categorize, & (If Decedent Was Married at Death) Characterize All of Decedent's Assets ñ
Before Decedent's assets can be distributed to those entitled to them, we must first:
Discover all the assets Decedent owned at death. See: Assets That Slip Through the Cracks.
Take control over them, among other reasons to protect them for Decedent's Heirs and Beneficiaries.
Inventory them, at least informally.
Categorize each as either:
A probate asset, meaning that its transfer to Decedent's Heirs and Beneficiaries may necessitate a probate proceeding, or
A non-probate asset, meaning that its transfer may be made "outside of probate."
See: Determining Decedent's Probate Assets.
And, if Decedent was married at death: Characterize each as either separate property, community property, or quasi-community property, revealing the extent to which Decedent's surviving spouse has any marital property interest in the asset. See: Determining Decedent's Surviving Spouse's Marital Interest.
4. Distribute Decedent's Assets to Those Entitled to Them & Re-title Those Titled in Decedent's Name ñ
Decedent's assets need to be distributed to Decedent's Heirs and Beneficiaries entitled to them.
Why? --- Because:
If Decedent had a Will, that's what he/she intended, what the law requires, and what Decedent's Beneficiaries want and are entitled to.
If Decedent had no Will, that's what the law requires and what Decedent's Heirs want and are entitled to.
Furthermore, any asset titled in Decedent's name needs to have the Decedent's name removed from the title and be re-titled in its new owner's name.
|Why? ---||Because eventually the asset will likely be sold to an outside party who will be willing to pay full market value only if the asset has clear title. This is why, in some cases, assets can be acquired, either in probate sales or later, at substantially discounted prices --- because the assets lack clear title. The way to avoid obtaining a discounted price upon sale of any of Decedent's assets, now or in the future, is to put the effort in now to make sure that the asset has clear title when sold by the estate or distributed to any heir or beneficiary.|
The process of both distributing and re-titling involves two different procedures, depending on the nature of the asset.
Decedent's Probate Assets. Generally, they are those that:
Are held in Decedent's name at death, and
- Will, or
Decedent's Beneficiaries according to the terms of Decedent's
Decedent's Heirs according to the laws of intestate succession (ie, inheritance) in the absence of a Will.
If Decedent has any probate assets, you will likely need to employ one or more formal or informal probate procedures for distributing and changing title to them. This may or may not involve the Court, depending on your circumstances. This page highlights whether Court involvement will be necessary or may be avoided for distributing and re-titling Decedent's probate assets --- see Paragraph E.
Decedent's Nonprobate Assets. These are all of Decedent's other assets, such as those:
Held In joint tenancy form,
Subject to a Community Property Agreement between Decedent and his/her surviving spouse,
Having death beneficiary designations, such as Payable- or Transferable-on-Death accounts, life insurance policies on Decedent's life, IRAs, Keogh Plans, and other pension plans, or
Held by Decedent's Living Trust.
Non-probate assets pass "outside of probate," without Court involvement. The procedure for their distribution and re-titling depends on the nature of the pertinent asset and is discussed in WASHINGTON NONPROBATE.
5. Pay Decedent's Debts ñ
Decedent's debts need to be paid or otherwise provided for.
Why? --- Because:
Decedent's creditors are entitled to be paid, and
Decedent's Heirs and Beneficiaries will want to know that whatever assets they receive are free from attachment and repossession by Decedent's creditors.
The process of paying Decedent's debts can get a little complicated depending on the situation:
probate is filed, for whatever reason: The task of paying Decedent's
debts and determining which of Decedent's assets will be used to pay them will
fall on one person, Decedent's Personal Representative.
no probate is filed (eg, either
because Decedent's probate assets can be transferred outside of probate or
Decedent had only nonprobate assets): The takers of Decedent's property will need to decide
among themselves whether they wish to: Agree
themselves who will pay Decedent's debts and pay them; or Select
one person (a "Notice Agent") to be responsible for determining which of Decedent's assets will be
used to pay Decedent's debts, paying them, and allocating the charges for those
payments among all the takers.
themselves who will pay Decedent's debts and pay them; or
one person (a "Notice Agent") to be responsible for determining which of Decedent's assets will be
used to pay Decedent's debts, paying them, and allocating the charges for those
payments among all the takers.
If Decedent's estate is insolvent (ie, lacks sufficient assets to pay all Decedent's debts): Practically speaking, insolvent estates are usually left to Decedent's creditors to fight over "who gets what."
Regardless of whether or not a probate is filed, those persons responsible for paying Decedent's debts (ie, the Personal Representative, the Notice Agent, or the takers themselves) will need to decide whether or not to follow Washington's Creditor's Claim Procedure, which, among other things, requires publication of a Notice to Creditors in a legal newspaper weekly for three successive weeks.
Advantages for doing so:
in which most creditors have to make their claim against Decedent's assets is
years after Decedent's date of death ...
months after the first publication of
the Notice to Creditors.
Decedent's probate estate (if any) may safely be closed and Decedent's assets may
distributed to the takers a little after four months from Decedent's date of
death (ie, promptly after four months after the first publication of
the Notice to Creditors) --- instead of having to keep Decedent's
estate open for 24 months after Decedent's death so that the Personal
Representative will be available to respond to any dilatory creditor.
The takers will receive Decedent's assets free from (almost) any fear of attachment and repossession by Decedent's creditors --- instead of having to wait 24 months after Decedent's death to remove the cloud of a possible attachment and repossession of an estate asset.
Disadvantages for doing so:
hours of work to comply with Washington's Creditor's Claim Procedure; and
Usually a little over $100 to publish the Notice to Creditors ($105 in King County; $117 in Pierce; $135 in Snohomish).
6. Begin a Probate for Other Reasons ñ
Even though you may not need to file a probate to distribute or change title to Decedent's assets or to pay Decedent's debts, a probate may be necessary or desirable for other reasons. The following page describes what some of those other reasons might be:
C. Circumstances Necessitating a Probate Proceeding in Washington: ñ
|If Decedent has no safe deposit box held in his/her name alone or if it contains no assets: A probate is unnecessary so far. Go to 2 below.|
1. Accessing Decedent's Safe Deposit Box ñ
This is the classic "Catch 22" situation:
Decedent's Will in order to file Decedent's probate, but
Decedent's Will is in his/her safety deposit box, and
safety box is in Decedent's name alone, and
The bank will not permit you to access Decedent's safe deposit box without a certified copy of your Letters, which you can only obtain after filing Decedent's probate.
See: Gaining Access to a Safety Deposit Box and Appointing a Special Administrator in order to obtain any Will it may contain.
See also: RCW 11.02.130, which provides in effect that safe deposit boxes, despite whatever their lease agreements say, cannot be held in joint tenancy form so as to make their contents "nonprobate assets" by passing to any purported "joint tenant by right of survivorship."
|If Decedent at death had no probate assets: A probate is unnecessary so far. Go to 3 below.|
2. Distributing and Changing Title to Decedent's Probate Assets ñ
Legally, you will need a probate (either an adjudication or a traditional probate) if Decedent's probate assets include:
value of over $100,000 of personal property, or
Any real property that you choose not to or cannot Administer by Affidavit.
Practically speaking, you will likely need a traditional probate if there is any question regarding the identity or nature of Decedent's assets, heirs, or beneficiaries.
See Paragraph E.
|If Decedent at death had no debts or other liabilities: A probate in Washington appears unnecessary. Go to 4 below.|
3. Paying Decedent's Debts ñ
Legally, there is no need for a probate to pay any of Decedent's debts --- the creditors don't care who pays them; they just want to be paid.
Practically speaking, however, a traditional probate proceeding is the ideal vehicle in which to deal with Decedent's debts, and if there is any potential for any debtor-creditor issues to arise around Decedent and his/her assets, it would likely be highly advantageous to open a traditional probate proceeding for Decedent's estate for no other reason than to follow and obtain the benefits of Washington's Creditor's Claim Procedure. Potential debtor-creditor issues include:
known but disputed claims, eg, specific claims that Decedent had disputed
or intended to dispute, but that remain unresolved; examples: a credit card
payment dispute, a business debt dispute, a gambling debt, etc.
known but potentially disputable claims, eg, Decedent's business
routinely involved disputed contract claims; examples, a professional gambler, a
building contractor, etc.
Unknown but disputable claims, eg, although Decedent had no history of disputed business claims, he/she was engaged in a profession known for having significant potential for disputed tort claims; examples, a physician, an attorney, etc.
The major benefits available from following Washington's Creditor's Claim Procedure are:
the time by which the great majority of creditors have to present their claim or
two years after Decedent's date of death,
four months after the date of the first publication of a Probate
Notice to Creditors.
a creditor whose claim was presented but rejected to file a lawsuit on the
rejection within one month of the rejection or be barred.
To obtain the benefits of a neutral, third party, ie, the Court, for the resolution of any disputed claim.
Consequently, by following this procedure, Decedent's heirs and beneficiaries can take whatever property they are entitled to receive and know that after the expiration of this four month period, the property should no longer be subject to the claims of any of Decedent's creditors, known or unknown.
|If Decedent at death was not & will not be a party to a lawsuit: A probate is unnecessary so far. Go to D below.|
4. Prosecuting or Defending a Lawsuit in Decedent's Name ñ
RCW 4.20.046 provides for the survival of lawsuits upon the death of a party, and that the only person who can maintain a deceased party's interest in a lawsuit is the Decedent's Personal Representative. See also: RCW 4.20.050 and RCW 11.40.110. Consequently, if Decedent was a party to a lawsuit at death or will become such a party thereafter --- for example, prosecuting a wrongful death lawsuit arising out of Decedent's death --- and if the lawsuit is to be maintained as regards Decedent, you will need to obtain Letters --- meaning that a probate will be required in order to appoint a Personal Representative --- so that the lawsuit may proceed as to Decedent's interest in it.
Sidebar: Appointing a Personal Representative to Bring a Wrongful Death Action.
|Assuming Decedent neither at death was nor thereafter will become a party to a lawsuit, nor held real or tangible personal property outside of Washington: A probate outside of Washington appears unnecessary. Go to E below.|
D. Circumstances Necessitating a Probate Elsewhere: ñ
1. A Lawsuit or Property Outside of Washington ñ
Caution: The foregoing discussion concerned any need for a Washington probate. If Decedent at death:
Was (or will become) a party to a lawsuit located outside of
Held real or tangible personal property located outside of Washington, then ---
a probate may be required there
under the laws of that jurisdiction.
Jargon: If a probate is filed in Washington for a Washington resident Decedent and another probate is filed outside of Washington for the same Decedent, the former (in what is known as the "resident" or "domiciliary" state or jurisdiction) is called the "domiciliary" probate and the latter (in what is known as the "foreign" or "ancillary" state or jurisdiction) is called the "ancillary" probate. Having gotten that out of the way, we will assume hereafter that we are dealing solely with a Washington probate for a Washington resident at death. Otherwise see: Ancillary Probate.
E. Possibilities for Avoiding a Probate ñ
No probate is
required and, therefore, no
Letters are required to distribute or change title to
assets. Before putting effort into obtaining
Letters in order to distribute or re-title property, make sure that the property is a probate asset. See:
Determining Decedent's Probate Assets.
To change title to nonprobate assets, see:
Distributing and changing title to Decedent's probate assets may or may not involve the Court, depending on your circumstances. Court involvement will likely be necessary for ANY real property among Decedent's probate assets. See, however: Administering Real Property by Affidavit. Practically speaking, the issue boils down to whether Court involvement may be avoided for any personal property among Decedent's probate assets. This paragraph expands on that possibility.
|If the value of Decedent's "probate assets" exceeds $100,000 or if Decedent's "probate assets" consist of ANY real property: Go to 2 below.|
1. Avoiding a Probate for Estates of $100,000 or Less ñ
The value of Decedent's "probate assets"
does not exceed $100,000, and
Decedent's "probate assets" consist only of personal property, then ---
The entire estate may pass to
its successors by
Personal Property Affidavit, and
a probate should not be necessary to clear title to property.
|If the benefits of centralized management are desired: Go to F below.|
2. Avoiding a Probate through an "Adjudication Proceeding" ñ
A probate also may be avoided through one or the other of two largely identical "Adjudication Proceedings":
Decedent died testate: A Proceeding to Admit Decedent's Will to Probate & Adjudicate Testacy, in which
the Court establishes Decedent's Will and, according to its
terms, determines its beneficiaries as the takers of the estate (RCW 11.20.020); or
If Decedent died intestate: A Proceeding to Adjudicate Intestacy and Heirship, in which, in the absence of a Will, the Court determines Decedent's heirs as the takers of the estate according to the Washington laws of intestate succession (ie, inheritance) (RCW 11.28.110).
An Adjudication Proceeding is truly a "good news / bad news" situation. The "good news" is that an Adjudication Proceeding is a summary probate in which the Court determines only:
Whether Decedent left a valid Will, and
"Who gets what" from the estate.
No Personal Representative is appointed, and the usual tasks of a probate, and particularly those dealing with and paying Decedent's debts and taxes (including both income and estate taxes), are left to the takers of Decedent's estate to deal with on their own.
The "bad news" is that procedurally, an Adjudication Proceeding largely involves the same steps as a traditional probate:
Preparing similar Court Petitions, either:
Petition for Adjudication (with or without Will), or
Traditional Probate: A
Petition for Appointment of Personal Representative (with or without Will)
& Nonintervention Powers;
Paying the same $200 filing fee;
Interacting similarly with the Court, usually in a non-noticed, ex
Sending similar Notice of the Court's Order of
Dealing with the issues of paying Decedent's creditors and taxes; and
Waiting four months for the terms of distribution to become final, either:
Four months from Order of Adjudication for its terms to become final, or
Traditional Probate: Four months from Order Admitting Will to Probate for its terms to become final as regards filing a Will Contest.
Bottom-line: If you can't avoid probate altogether for clearing title to Decedent's probate assets by using a Personal Property Affidavit, you are forced to choose between either:
A Traditional Probate with
|Personal Representative ("PR")||None||Appointed|
|Availability of Family Support (For Surviving Spouse or Children)||Impractical||Yes|
Publication of Notice
|Impractical||Not required but highly advantageous and practical|
|Payment to Creditors||By takers, from their respective shares||By Personal Representative from estate|
Creditors' Statute of
|24 months from Decedent's death||If Probate Notice to Creditors published:
4 months from first publication
|By takers||By Personal Representative|
|Payment of Taxes||By takers, from their respective shares||By Personal Representative from estate|
|Will's Terms Become Final||4 months after entry of Order of Adjudication||4 months after entry of Order of Admitting Will to Probate (and Appointing Personal Representative)|
|Actions Become Final||4 months after entry of Order of Adjudication||Upon (or 30 days after) filing Declaration of Completion of Probate, following end of 4-month Creditor's Claim period|
1. Centralized management due to PR: More likely that creditor and tax issues will be handled promptly and correctly; common issues (eg, payment of debts, costs of administration, and taxes; asset sales; etc.) can be handled more effectively.
2. Procedure in place to deal effectively with disagreements, eg, by creditors or among takers.
3. Allows for substantially shortened creditor's claims period.
4. Provides more effectively for family support for surviving spouse or children.
Given the similarity of requirements between the two procedures together with the additional benefits obtained from using a traditional probate procedure, most people choose to forgo an Adjudication in favor of a Traditional Probate with Nonintervention Powers in order to obtain its specific advantages. An Adjudication, however, might be advantageous (due to its simplicity) in limited circumstances, such as:
An estate passing to only:
One taker, or
A few takers with a history of harmony and cooperation.
An estate whose only legal issue is "Who gets what?"
|To determine which instructions & forms to use to probate the estate: Go to G below.|
F. A Probate May Be Advantageous or Necessary ñ
1. With Nonintervention Powers ñ
What now remains is a Traditional Probate, whose reputation for expense and delay should largely be overcome in Washington so long as you can obtain Nonintervention Powers. See: Qualifying for Nonintervention Powers.
2. Without Nonintervention Powers ñ
If for some reason you are unable to qualify for Nonintervention Powers (usually because the estate is insolvent), you should be able to open Decedent's probate estate and be appointed as Decedent's Personal Representative with the instructions and forms provided by this website, but you will likely soon need more help to administer and close the probate estate than this website provides. Therefore, WASHINGTON PROBATE urges you to:
Use your best
efforts to qualify for and obtain Nonintervention Powers, which probably
over 99% of Washington Personal Representatives do obtain. For the details
of that process, see:
Obtaining Nonintervention Powers.
And if your are unable to obtain Nonintervention Powers, to:
Engage legal counsel, as it is unusual for a Personal Representative to complete a
probate procedure without either:
Nonintervention Powers by the Court, or
Receiving the assistance that legal counsel can provide.
In effect, your
grant of Nonintervention Powers by the Court
and your ability to probate Decedent's estate using Nonintervention Powers
are what should allow you to "do it yourself" without necessarily engaging an attorney.
G. Determining Which Instructions & Forms to Use for Probating the Estate ñ
1. The Simple Version
See: Washington Probate Instructions & Probate Forms "for Dummies"® --- to determine if that will fit your needs. If not, then proceed with the more detailed version of the instructions:
2. Outline of the More Detailed Version
Opening the Probate Estate
Preparing for Court
Going to Court
Giving Notice of Appointment
Administering the Probate Estate
Opening a Checking Account
Preparing an Inventory
Handling Creditor's Claims
Handling Tax Issues
H. A Special Circumstance: The Death of an Intestate Ward ñ
(Unusual & Arcane --- Ignore If Not Relevant)