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Washington Probate Instructions

 

 

Overview of the Opening Process

 

Legally, there are four tasks in opening a probate estate:

  1. Having the Court admit the Decedent's Will to probate (ie, "prove" the Will), if the Decedent died with a valid Will.
     

  2. Having the Court appoint you as Decedent's Personal Representative, giving you the legal authority to administer the estate.
     

  3. Having the Court, in your appointment, grant you Nonintervention Powers, allowing you to administer the estate without your having to obtain the Court's prior approval for any further action you desire to take on behalf of the estate.
     

  4. For you then to send notice of your appointment to interested parties, namely, Decedent's heirs and beneficiaries and the state and federal governments, giving each of them the opportunity to take any actions they believe appropriate to protect their own interests as regards Decedent and the estate.

If this is your "first time in Court," WASHINGTON PROBATE hopes that you will find the Court personnel, the Judges, clerks, and other administrative staff, to be both knowledgeable and helpful (if a little harried due to the workload), and your Court experience itself to be a remarkable example of society and democracy at work on a day-to-day basis (if a little hectic and seemingly disorganized).

Traditional Probate Procedure

 

I.  Opening a Washington Probate Estate

  1. Preparing for Probate Court

    An Official Action Needs to Be Taken Before a Personal Representative Can Be Appointed

    1. Obtaining a Certified Copy of Decedent's Death Certificate

    2. Determining the Proper Court

      1. Jurisdiction

      2. Venue

    3. Filing a Case Cover Sheet

    4. Filing Decedent's Will

    5. Petitioning for Letters

    6. Obtaining Nonintervention Powers

    7. Avoiding Notice of Hearing

    8. Avoiding Posting of Bond

    9. Avoiding Designating a Resident Agent

    10. Drafting a Proposed Court Order

    11. Filing an Oath of Personal Representative

    12. Resolving Issues Surrounding Payment of Compensation to You as Personal Representative

    13. Filing a Probate Notice to Creditors

    14. Telephoning the Probate Clerk

  2. Going to Court

  3. Giving Notice of Your Appointment

    1. To Heirs & Beneficiaries

    2. To Washington Department of Social & Health Services

    3. To Washington Department of Revenue

    4. To Internal Revenue Service

  4. "Housekeeping" Issues

    1. Evidencing Your Authority as PR

    2. Changing Your Address During Administration

 

A.  Preparing for Probate Court    

 

This is the "doing your homework --- getting your ducks in a row" phase, so that when you do go to Court, you'll sail through and come out with the prize --- your Letters, authorizing you to administer the estate.

 

Problem:  An Official Action Needs to Be Taken Before a Personal Representative Can Be Appointed

 

 

1.  Obtaining a Certified Copy of Decedent's Death Certificate:    

Washington law no longer requires a Death Certificate for the Decedent to open a probate; nevertheless, some Judges may wish to review one, for example, to obtain independent evidence whether Decedent was survived by a spouse.  If convenient, obtain a certified copy of Decedent's Death Certificate and take it with you to the hearing.  There is no need to file it; simply have it available to hand to the Judge if he/she asks for it.

 

A probate for a Washington resident may be filed in the Superior Court of any county in Washington.

Go to 3 below.

 

2.  Determining the Proper Court    

  1. Jurisdiction    
     

    1. Subject Matter Jurisdiction
       

      Bottom-line: As long as the Decedent died a resident of Washington or within Washington, a Washington Superior Court will have subject matter jurisdiction over (ie, legal authority to adjudicate) your case.  RCW 11.96A.040(1)
       

    2. Personal Jurisdiction
       

      Bottom-line: As long as all the parties to the probate have physical presence within Washington or willingly submit to the Court's jurisdiction, a Washington Superior Court will have personal jurisdiction (ie, legal authority) over the parties to your case.
       

  2. Venue    
     

    Bottom-line: A probate for a Washington resident may be filed in the Superior Court of any county in Washington.  RCW 11.96A.050(3)  If the probate is not filed in Decedent's resident county at death, see: If Decedent Was a Resident of a Different County in Washington at Death.

 

3.  Filing a Case Cover Sheet    

 

Every new matter filed in a Washington Superior Court requires the filing of a Superior Court Case Information Cover Sheet.  King and Pierce (and perhaps other) Counties have their own version of it.  Select, complete, and sign the appropriate form from among the following three alternatives:

 

If Decedent died without a Will ---

Go to 5 below.

4.  Filing Decedent's Will    

 

For discussion of any of the following, see:

    Procedure for Filing Decedent's Will.
    Will is in Inaccessible Safety Box.
    Will is Lost or Destroyed.
    Will is Not Self-Proving.
    Will is Already Filed.
    Will is Admitted in Another State.

 

Bottom-line: If you are in possession of a Will of a Decedent, Washington law requires you to either promptly:

 

The Issue: You need to be officially appointed by the Court as Decedent's Personal Representative, authorizing you to administer the estate.  Upon its appointment, the Court will direct the Clerk to issue you a document, known as Letters, officially evidencing your appointment.

5Petitioning for Letters    

 

Select, complete, and sign the appropriate form from among the following three alternative Petition for Letters forms, depending on:

Petition for Probate of Will, Letters Testamentary, & Nonintervention Powers form.

Petition for Probate of Will, Letters of Administration
With Will Annexed, & Nonintervention Powers
form.

Petition for Letters of Administration & Nonintervention Powers form.

 

Side-bar:  Priority Order of Persons Entitled to Letters.

 

Side-bar:  Appointing a Guardian ad Litem for a Minor (or otherwise incapacitated) Heir or Beneficiary.

 

See: RCW 11.68.011 re Petition for Nonintervention Powers.

 

 

If:

     ● Decedent's Will names you as Personal Representative, and

     ● 40 days have elapsed since Decedent's death ---

Go to 8 below.

6.  Obtaining Nonintervention Powers    

 

Nonintervention Powers allow you to administer and close the estate without further interaction with, or supervision by, the Court.

 

For discussion of any of the following, see:

   

What are Nonintervention Powers &
why & how to obtain them?

    If the estate appears to become, or
actually becomes, Insolvent
After Your Appointment.
    Petitioning for Nonintervention Powers
After Your Appointment.

 

Bottom-line: You are eligible to obtain Nonintervention Powers if:

  1. The combined probate and nonprobate estate is solvent (ie, has more assets than debts), AND
     

  2. Any of the following three situations is true (RCW 11.68.011(2)):
     

    1. If Decedent died testate: Decedent's Will names the petitioner as Decedent's Personal Representative; OR
       

    2. If Decedent died intestate:

      1. The petitioner is Decedent's surviving spouse, and

      2. Decedent's estate consists ONLY of community property, and

      3. At the time of filing the petition, all of Decedent's living children are also the petitioner's children (eg, Decedent has no living children of a prior marriage); OR
         

    3. The "Catch-all" provision applies:

      1. The petitioner was not a creditor of Decedent at Decedent's death, and

      2. It would be "in the best interests of Decedent's beneficiaries and creditors" if Decedent's estate were administered with Nonintervention Powers, with that being presumed to be true unless an interested party can prove otherwise.

      Note: Obtaining Nonintervention Powers under the "Catch-all" provision, however, requires either Notice to, or the written Consent of, each heir and beneficiary --- see 7.b below.

 

If:

     ● You qualify for Nonintervention Powers under any but the "Catch-all" provision, and

     ● 40 days have elapsed since Decedent's death ---

Go to 8 below.

7Avoiding Notice of Hearing    

 

Your Petition for Letters and Nonintervention Powers effectively consists of two different Petitions, each having separate notice requirements, avoidable as follows:

  1. Avoiding Notice for Petition for Letters    
     

  2. Avoiding Notice for Petition for Nonintervention Powers    

 

If Decedent's Will waives Bond ---

Go to 9 below.

8.  Avoiding Posting Bond    

 

For discussion of any of the following,

see: Avoiding Posting Bond:

    What is a Probate Bond?,
    When is a Probate Bond
Not Required?,
    Alternatives if a Probate Bond
Is Required,
    Where to Obtain a
Probate Bond.

 

 

If you are a Washington resident ---

Go to 10 below.

9.  Avoiding Designating a Resident Agent    

 

For discussion of any of the following,

see: Avoiding Designating a Resident Agent:

    What is a Resident Agent?,
    When is the Designation of a
Resident Agent Required?,
    How to Designate a
Resident Agent.

 

 

The Issue: Courts don't write Orders, they only sign them.  You must prepare a proposed Order for the Judge's review and signature, memorializing his/her approval of your Petition.

10.  Drafting a Proposed Court Order    

 

Select the appropriate form from among the following three alternatives:

Order Admitting Will to Probate & Granting Letters Testamentary & Nonintervention Powers form.

Order Admitting Will to Probate & Granting Letters of Administration
With Will Annexed & Nonintervention Powers
form.

Order Granting Letters of Administration & Nonintervention Powers form.

 

Add the Header (ie, complete the top half of the first page: county, Decedent's name, and Case. No. if available) and your contact information on the footer and sign it.

 

 

The Issue: You must file an Oath (a sworn statement by the Personal Representative promising to administer the estate according to law) in order to obtain your Letters.

11.  Filing an Oath of Personal Representative    

 

After the Court appoints you as Decedent's Personal Representative but before the Clerk will issue you Letters, you must file an Oath of Personal Representative (and any Bond that may be required).  RCW 11.28.170

 

If Decedent named you to serve as his/her Personal Representative, complete the Header of an

 

Oath of Personal Representative (With Will) form.

 

If you were not named to serve as Decedent's Personal Representative, complete the Header of an

 

Oath of Personal Representative (Without Will) form.

 

Unlike most other forms that you will use during your administration, all oaths of office must be "notarized."  RCW 9A.72.085.  So partially complete the appropriate Oath, take it to a notary, sign it in front of the notary, and have the notary "notarize" your signature.

 

Side-bar: Courts don't provide notarial service, but private notarial services are available in some Courthouses; see, for example, Notary at King County Courthouse and Kent Regional Justice Center.

 

 

12.  Resolving Issues Surrounding Payment of Compensation to You as Personal Representative    

 

In consideration of your rendering services to the estate as Personal Representative, you are entitled to receive payment of compensation.  If you wish to receive compensation for your services as Personal Representative, experience indicates that it is best to resolve issues surrounding your compensation before obtaining your Letters.  See: Payment of Compensation to the Personal Representative & His/Her Attorney.

 

 

The Issue: Filing a Probate Notice of Creditors is the first of the statutory steps required in order to force Decedent's creditors to promptly present their claims or be barred (in most cases) within the four-month Creditor's Claim statute of limitations period.

13.  Filing a Probate Notice to Creditors    

 

If Decedent died within the last twenty months, complete and sign a:

 

 Probate Notice to Creditors form.

 

Choose a legal newspaper in the county of Decedent's residence at death to publish your Probate Notice to Creditors and coordinate with them the date that it will be first published.  See: Legal Newspapers & Costs of Publication.  Add that date to the line stating "Date of First Publication of this Notice."  Ignore for the moment the line stating "Decedent's Social Security Number."

 

If Decedent died over twenty months ago, then there is no reason to file and publish a Probate Notice to Creditors.   (Exception: If you probate the estate in a county other than Decedent's resident county at death, you are required to file and publish a Probate Notice to Creditors in the county of Decedent's residence at death).

 

 

14.  Telephoning the Probate Clerk    

 

Telephone the County Clerk in the county where your probate will be filed (Telephone Numbers) and ask to speak to the probate clerk:

  1. Determine the days and times when the Court is available to hear probate Petitions for Letters.

     

  2. Determine if there are any requirements specific to your county or other requirements that it would be helpful for you to know before going to Court.  For example:
     

Complete any of the foregoing requirements that may be applicable to you.

 

 

B.  Going to Court    

 

See in general:  Washington Probate Court Practice

 

And in particular:

By completing the foregoing instructions on this page, you will have completed the steps required to obtain your Letters for a typical probate estate.

 

 

The Issue: Having obtained your Letters, you must promptly send notice of your appointment to interested parties, namely, Decedent's heirs and beneficiaries and, possibly, the state and federal governments, giving each of them the opportunity to take any actions they believe appropriate to protect their own interests as regards Decedent and the estate.

C.  Giving Notice of Your Appointment    

  1. To Heirs & Beneficiaries

  2. To Washington Department of Social & Health Services

  3. To Washington Department of Revenue

  4. To Internal Revenue Service

You must provide Notice of your appointment to each of the following individuals and, depending on the circumstances described below, agencies:

 

 

1.  To Heirs & Beneficiaries    

 

RCW 11.28.237 requires you to give written Notice of your appointment to every conceivable Heir or Beneficiary of Decedent's combined probate and nonprobate estate.  Who Are These "Heirs and Beneficiaries?"  To satisfy this requirement:

 

      a.  If Decedent Died Testate:

Side-bar: Although not required by the pertinent statute (RCW 11.28.237), Constitutional due process requires that a copy of any Will of Decedent that was admitted to probate be included with the Notice of Appointment.  This gives all recipients notice of the Will's contents, so that if anyone desires, he/she may timely file a Will Contest.  See Estate of Young, 23 Wn. App. 761 (1979).

 

     b.  If Decedent Died Intestate:

Problem:  An Heir or Beneficiary Resides Outside of the United States.  Then:

For further information, contact:

 

U.S. Department of State

Office of Foreign Missions

2202 "C" Street NW, Room 2238

Washington, D.C. 20520

(202) 647-3417

 

Problem:  If Any Heir or Beneficiary Is Missing.  Then file a Petition with the Court:

 

2.  To Washington Department of Social & Health Services ("WDSHS")    

 

RCW 11.28.237(2) and 11.40.020(1)(d) require you to give written Notice to WDSHS.  Before doing so, however, you will need to decide whether or not to publish a Probate Notice to Creditors (and, technically, do so within 30 days of your appointment).  See: Handling Creditor's Claims in general and Why Publish a Probate Notice to Creditors? in particular.  WASHINGTON PROBATE strongly urges you to publish a Probate Notice to Creditors unless Decedent died over twenty months ago or you believe your specific situation is such that no reasonable benefit is likely to be gained from publishing --- for example:

Practically speaking, however, all it takes is one unforeseen, illegitimate, or dilatory Creditor's Claim to be filed and presented against the estate to make publishing a Probate Notice to Creditors (generally around $100) a remarkably sound investment.  Please think long and hard before foregoing this opportunity.

 

Caution: The Notice sent to WDSHS is required to contain Decedent's Social Security Number, but GR31 prohibits filing Social Security Numbers with the Court.  Consequently, make sure that you place Decedent's Social Security Number on the copy of any form you send to WDSHS but not on any form that you file with the Court.

 

a.  If you DO intend to publish a Probate Notice to Creditors within 30 days of your appointment:

Timing: Publish your Probate Notice to Creditors within 30 days of your appointment and thereafter promptly:

b.  If you DO NOT intend to publish a Probate Notice to Creditors within 30 days of your appointment:

Notice of Appointment of Personal Representative and
Pendency of Probate to WDSHS & Declaration of Mailing
form.

 

3.  To Washington Department of Revenue ("WDRev")    

 

If Decedent was engaged in business in Washington, then RCW 11.28.238 and 82.32.240 require you to give written Notice of your appointment to the WDRev within 60 days of your appointment.  To do so:

Notice of Appointment of Personal Representative and
Pendency of Probate to WDRev & Declaration of Mailing
form.

 

4.  To Internal Revenue Service ("IRS")    

 

Download and print for your files the following IRS Publications and Forms:

If you submit a Form SS-4 by mail, it will likely take a month or two until you receive your EIN for the estate.  You need your EIN in order to file a Form 56, which you should do promptly upon your appointment.  Fortunately, you can apply for an EIN by either:

To apply by telephone:

Now that you have your EIN, complete and sign the Form 56, and mail its original to:

 

 Internal Revenue Service

Fresno, CA 93888-0002

 

 

D.  "Housekeeping" Issues    

 

1.  Evidencing Your Authority as PR    

 

As Decedent's Personal Representative, your Letters evidence your official grant of authority.  Chances are that when you deal with a third party on behalf of the estate, the third party (eg, a bank or brokerage) may want to see and possibly keep for its records, a copy of your Letters and may require additional evidence of your authority, such as:

Affidavit of Personal Representative (with Will) form.

 

Affidavit of Personal Representative (without Will) form.

 

 

2.  Changing Your Address During Administration    

 

If you move during your service as Personal Representative, you should inform the Court and all the other interested parties of your change of address.  See: Change of Address of Personal Representative During Administration.

 

 


 

 

You have now completed the steps required to open a typical probate estate and give notice of your appointment as its Personal Representative.  Your next step is to begin your administration of the estate.

 

 

WASHINGTON PROBATE
Instructions & Forms


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