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WA-Probate > Probate Instructions > Frequently Asked Questions about Probate

 

Washington Probate Instructions

 

 

Frequently Asked Questions about Probate

What's the probate process, simply & generally?     ñ

 

1.  File any Will and Petition the Court for Appointment of Personal Representative (the "PR").

 

2.  Send Notice of Appointment of PR to Beneficiaries, Heirs, and Other Interested Parties.

 

3.  Collect & Manage (& possibly Sell) Property.

 

4.  Pay Debts.

 

5.  Determine & Settle Any Taxes Due.

 

6.  Distribute Remaining Assets.

 

7.  Close the Estate.

 

What does "probate" mean?     ñ

 

Probate means "to prove," from the Latin verb "probare."

 

What is being proved by probate?     ñ

 

The Will of someone (the "Decedent") who has died leaving a valid Will (ie, died "testate").  Specifically, what is being proved is that:

Sidebar:  What does "testate" mean?

          Testate means "to make a Will," from the Latin verb "testan."

 

To whom is the Will being proved?    ñ

 

The Superior Court usually in the county in which the Decedent resided at death.

 

For what purpose is the Will being proved?     ñ

 

What is being proved to the Court is that the Personal Representative (in other states, called the "Executor" (male) or "Executrix" (female)) that Decedent nominated in the Will can be appointed by the Court and authorized to carry out Decedent's desires, as expressed in the provisions of his/her Will:

In summary: To ensure that Decedent's bills are paid and Decedent's property is accounted for, transferred to, and retitled in the names of Decedent's Beneficiaries.

 

What happens if someone dies without a valid Will?     ñ

 

Without a Will to prove or a named Personal Representative to appoint, the Court turns not to the terms of a Will but, instead, to State law and:

 

What are the practical differences between "testate" and "intestate"?   ñ

 

Testate

Intestate
Valid Will No Valid Will

Will Signed by Testator

---

A "Testate" Decedent, having a "Testate" Estate

An "Intestate" Decedent, having an "Intestate" Estate

Petition for Probate of Will & Letters Testamentary

Petition for Letters of Administration

"Executor" of Will

"Administrator" of Estate

Personal Representative Named in Will

Personal Representative Appointed according to Priority List in State Statute

Distributees are "Beneficiaries"

Distributees are "Heirs" or "Heirs-at-Law"

Distributees Named in Will

Distributees Specified in State Statute

Beneficiaries receive Whole Items

Heirs receive Shares of Estate

Sidebar:  What happens if Decedent has a valid Will but none of those named is able or willing to serve as Personal Representative?

 

          A Petition for Probate of Will & Letters of Administration With Will Annexed is filed, and an Administrator With Will Annexed is appointed:

  • The Personal Representative is an appointed "Administrator," but

  • The Distributees are Beneficiaries, who take under the Will.

And to complete the picture:  What happens if Decedent has a valid Will, naming a Personal Representative who is able and willing to serve, but all Decedent's Beneficiaries predecease the Decedent?

 

            A Petition for Probate of Will & Letters Testamentary is filed, and an Executor(trix) is appointed:

  • The Personal Representative is a named "Executor(trix)," but

  • The Distributees will be Decedent's Heirs, who take according to State statute.

 

What are "Letters" ?  How are they obtained?     ñ

 

Letters are the document issued by the Court, evidencing its appointment of the Personal Representative:

Letters are obtained by filing a Petition with the Court and having the Court open a probate for the Decedent, ie:

  • Admit any valid Will of Decedent and

  • Appoint a Personal Representative for Decedent's estate.

 

Are ALL assets subject to probate?     ñ

 

The only assets that are subject to probate (Decedent's "probate assets") are those held in Decedent's name without designated beneficiaries (other than his/her estate) on death.

 

Examples of Probate Assets:

 Examples of Nonprobate Assets:

Nonprobate assets pass upon death to the named survivor or beneficiary "outside of probate."  The methods for making nonprobate assets (eg, joint tenancies, POD or TOD accounts, community property agreements, living trusts, etc.) are sometimes called "Will substitutes."

 

What is the Washington statutory Creditor's Claim law?  What benefits does it provide?     ñ

 

In the Washington statutory Creditor's Claim law, the legislature is balancing two interests:

  • Creditors' desires to be paid the debt due them, and

  • Beneficiaries' and Heirs' desires to receive estate assets having clear title.

The compromise reached is that:

This procedure, and especially publishing a Probate Notice to Creditors, is ENTIRELY OPTIONAL & NOT REQUIRED BY LAW.  It takes:

  • Some effort,

  • Four months of waiting for the Statute of Limitations to expire, and

  • $100 or more to publish the Probate Notice to Creditors.

The primary benefit that it provides is it reduces the time that the great majority of creditors have to make their claim:

  • From 24 months after Decedent's date of death,

  • To 4 months after the date of first publication of the Probate Notice to Creditors.

What this means is that by following this procedure, when Decedent's assets are distributed to his/her Heirs and Beneficiaries following the expiration of the 4-month period, they take those assets with virtually clear title, free of any potential claims --- otherwise, the assets remain subject to potential claims for 2 years after Decedent's death.  In its absence, all it takes is one dilatory creditor to make the $100 or so cost of publication seem like a remarkably cheap investment.

 

How long does probate take?     ñ

 

That depends on whether the Personal Representative wants to take advantage of the Washington statutory Creditor's Claim law.  If its benefits are desired, the earliest a probate could close would be under these circumstances:

That's 4 1/2 months.  Typically 6 months or less is quick, 6-9 months is more usual, and 9-12 months is common where you have a more relaxed PR, a more complex or problematical estate, or if an estate tax return is due (eg, why pay a tax before it is due?).

 

If the benefits of the Washington statutory Creditor's Claim law are not desired, a probate could open and close in the same day.

 

How much does probate cost?     ñ

 

Fixed costs (more or less):*

  • Superior Court filing fee: $200.

  • Publication of Probate Notice to Creditors: $100 (approximate - see State-wide examples).

  • Out of pocket expenses (copying, mailing, etc.):  Likely small, eg, $50.

  • Total fixed costs = $350 or more (depends on the county of publication).

Potential costs (commissions and fees):

  • PR's commissions: Likely to be waived if performed by an Heir or Beneficiary.

  • Lawyer's fees:  A lawyer is not required to be engaged.

  • Appraiser's fees: Hiring an appraiser is not likely necessary.

  • Accountant's fees:  Hiring an accountant is not likely necessary.

Summary: A minimum of $350 in fixed costs plus commissions and fees, which in Washington
are generally based on hours worked and must be approved by the Court. 

RCW 11.48.210

 

Sidebar:  As a comparison, many states provide by law for the amount of commissions or fees
to be based on the value of the estate.  California, one such state, provides as follows:

 

Estate Value

Commission or Fee

$100K

$3,150

$250K

$6,150

$500K

$11,150

$1M

$21,150

 

 

What are its advantages?     ñ

 

The probate process provides:

 

What are its disadvantages?     ñ

 

  • Many estates don't need third-party oversight.

  • Many estates don't have disputes.

  • Many estates don't have debtor/creditor problems.

  • Many estates could close sooner than 4 to 6 months after date of death.

  • Probate is necessarily a public process, and many Heirs and Beneficiaries would prefer that the process be private.

  • The home state ("domiciliary") probate covers all of the Decedent's personal property but only so much of Decedent's real property as is located within that state.  Consequently, an out-of-state ("ancillary") probate is required in every state in which Decedent holds real property --- an expensive, time-consuming, and inefficient process.

All of the foregoing disadvantages of probate (and more) may be remedied through the use of a revocable living trust as the vehicle for one's estate plans.

 

 

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