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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 a Probate Necessary?

  1. Is Probate Required by Washington Law?

  2. Introduction

    1. Deal with Any Emergency Situation Requiring Official Authority

    2. File Decedent's Will

    3. Marshal, Inventory, Categorize, and ... Characterize All of Decedent's Assets

    4. Distribute Decedent's Assets to Those Entitled to Them & Re-title Those Titled in Decedent's Name

    5. Pay Decedent's Debts

    6. Begin a Probate for Other Reasons

  3. Circumstances Necessitating a Traditional Probate Proceeding (a "probate") in Washington:

    1. Accessing Decedent's Safe Deposit Box

    2. Distributing and Changing Title to Decedent's Probate Assets.

    3. Paying Decedent's Debts

    4. Prosecuting or Defending a Lawsuit in Decedent's Name

  4. Circumstances Necessitating a Probate Elsewhere:

    1. A Lawsuit or Property Outside of Washington

  5. Possibilities for Avoiding a Probate:

      Administering Real Property by "Lack of Probate" Affidavit

    1. Avoiding a Probate for Estates of $100,000 or Less

    2. Avoiding a Probate through an "Adjudication Proceeding"

  6. A Probate May Be Advantageous or Necessary

    1. With Nonintervention Powers

    2. Without Nonintervention Powers

  7. Determining Which Instructions & Forms to Use for Probating the Estate

    1. The Simple Version

    2. The More Detailed Version

  8. A Special Circumstance: The Death of an Intestate Ward

 

Washington law:

  • Does not require probate, but

  • Does require any Will to be filed with the Court within at most 40 days of death.

A.   Is Probate Required by Washington Law?    

 

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.

 

Jargon:
    If Decedent died testate (ie, with a Will), the Letters are called "Letters Testamentary," and their holder is known as the "Executor of the Will."
    If Decedent died intestate (ie, without a Will), the Letters are called "Letters of Administration," and their holder is known as the "Administrator of the Estate."
    Anyone holding Letters (of whatever kind) is generically known as Decedent's "Personal Representative."

B.  Introduction    

 

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)    

 

See: Appointing a Special Administrator.
 

    Why? --- To take care of the emergency.

 

 

2.  File Decedent's Will    

 

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.
 

    Why? --- Because Washington law requires it.  RCW 11.20.010
 

 

3.  Marshal, Inventory, Categorize, & (If Decedent Was Married at Death) Characterize All of Decedent's Assets    

 

Before Decedent's assets can be distributed to those entitled to them, we must first:

  1. Discover all the assets Decedent owned at death.  See: Assets That Slip Through the Cracks.
     

  2. Take control over them, among other reasons to protect them for Decedent's Heirs and Beneficiaries.
     

  3. Inventory them, at least informally.
     

  4. Categorize each as either:
     

    1. A probate asset, meaning that its transfer to Decedent's Heirs and Beneficiaries may necessitate a probate proceeding, or
       

    2. A non-probate asset, meaning that its transfer may be made "outside of probate."
       

    See: Determining Decedent's Probate Assets.
     

  5. 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    

 

Decedent's assets need to be distributed to Decedent's Heirs and Beneficiaries entitled to them.

 

    Why? --- Because:

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.

  1. Decedent's Probate Assets.  Generally, they are those that:
     

    • Are held in Decedent's name at death, and
       

    • Pass to:
       

      • Decedent's Beneficiaries according to the terms of Decedent's Will, or
         

      • 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.
     

  2. 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    

 

Decedent's debts need to be paid or otherwise provided for.

 

    Why?  --- Because:

The process of paying Decedent's debts can get a little complicated depending on the situation:

  1. If a 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.
     

  2. If 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:
     

    1. Agree among themselves who will pay Decedent's debts and pay them; or
       

    2. 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.
       

  3. 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.

 

6.  Begin a Probate for Other Reasons    

 

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:    

 

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    

 

This is the classic "Catch 22" situation:

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    

 

Legally, you will need a probate (either an adjudication or a traditional probate) if Decedent's probate assets include:

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    

 

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:

The major benefits available from following Washington's Creditor's Claim Procedure are:

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    

 

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:    

 

1.  A Lawsuit or Property Outside of Washington    

 

Caution: The foregoing discussion concerned any need for a Washington probate.  If Decedent at death:

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    

 

To repeat:

 

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    

 

If:

The entire estate may pass to its successors by
Personal Property Affidavit, and
a probate should not be necessary to clear title to property.
RCW 11.62.010

 

 

If the benefits of centralized management are desired: Go to F below.

2.  Avoiding a Probate through an "Adjudication Proceeding"    

 

A  probate also may be avoided through one or the other of two largely identical "Adjudication Proceedings":

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:

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:

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:

Issue An Adjudication A Traditional Probate with
Nonintervention Powers
Personal Representative ("PR") None Appointed
Assets Collected
& Administered
No Yes
Availability of Family Support (For Surviving Spouse or Children) Impractical Yes
Publication of Notice
to Creditors
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
Limitations Period 
24 months from Decedent's death If Probate Notice to Creditors published:
4 months from first publication
Determination of
Taxes Due
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
Advantages Simplicity

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:

 

To determine which instructions & forms to use to probate the estate: Go to G below.

F.   A Probate May Be Advantageous or Necessary    

 

1.  With Nonintervention Powers    

 

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    

 

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:

  1. 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:
     

  2. Engage legal counsel, as it is unusual for a Personal Representative to complete a probate procedure without either:
     

    1. Being granted Nonintervention Powers by the Court, or
       

    2. 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    

 

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

  1. Opening the Probate Estate

    1. Preparing for Court

    2. Going to Court

    3. Giving Notice of Appointment
       

  2. Administering the Probate Estate

    1. Opening a Checking Account

    2. Preparing an Inventory

    3. Handling Creditor's Claims

    4. Handling Tax Issues
       

  3. Closing the Probate Estate

 

H.  A Special Circumstance: The Death of an Intestate Ward    

(Unusual & Arcane --- Ignore If Not Relevant)

 

 

WASHINGTON PROBATE
Instructions & Forms


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