How to Proceed without Reading the 100 Page Instruction Manual
Is a Probate Necessary?
- Does not require probate, but
- Does require any Will to be filed with the Court within at most 40 days of death.
Is Probate Required by Washington Law?
- 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 few percent 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:
- Any 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: C.2 below.
- 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.
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:
- 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.
- 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
- 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:
- 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.”
- 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.
- 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:
- 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.
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
- 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.
- 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.
- Pay Decedent’s Debts 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:
- 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.
- 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:
- Agree among 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.
- 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:
- The time in which most creditors have to make their claim against Decedent’s assets is reduced:
- From two years after Decedent’s date of death …
- To four 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 reasonably be 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.
- The time in which most creditors have to make their claim against Decedent’s assets is reduced:
- Disadvantages for doing so:
- Several 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).
- 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:
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.
- Accessing Decedent’s Safe Deposit Box This is the classic “Catch 22” situation:
- You need Decedent’s Will in order to file Decedent’s probate, but
- Decedent’s Will is in his/her safety deposit box, and
- The 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.”
- Distributing and Changing Title to Decedent’s Probate Assets
If Decedent at death had no probate assets: A probate is unnecessary so far. Go to 3 below.
Legally, you will need a probate (either an adjudication or a traditional probate) if Decedent’s probate assets include:
- A net 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.
- 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:
- Specific 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.
- Generally 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:
- To reduce the time by which the great majority of creditors have to present their claim or be barred:
- From two years after Decedent’s date of death,
- To four months after the date of the first publication of a Probate Notice to Creditors.
- To force 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.
- 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.
Circumstances Necessitating a Probate Elsewhere:
- A Lawsuit or Property Outside of WashingtonCaution: 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 Washington, or
- 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.
Possibilities for Avoiding a Probate
- No probate is required and, therefore, no Letters are required to distribute or change title to nonprobate 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: WASHINGTON NONPROBATE.
- 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.
- Avoiding a Probate for Estates of $100,000 or Less
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.
- The value of Decedent’s “probate assets”
does not exceed $100,000, and
- Decedent’s “probate assets” consist only of personal property, then —
- The value of Decedent’s “probate assets”
- Avoiding a Probate through an “Adjudication Proceeding”
If the benefits of centralized management are desired: Go to F below.
A probate also may be avoided through one or the other of two largely identical “Adjudication Proceedings”:
- If 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:
- Adjudication: A 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 parte hearing;
- Sending similar Notice of the Court’s Order of Adjudication;
- Dealing with the issues of paying Decedent’s creditors and taxes; and
- Waiting four months for the terms of distribution to become final, either:
- Adjudication: 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:
Issue An Adjudication A Traditional Probate with
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:
- 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?”
A Probate May Be Advantageous or Necessary
- With Nonintervention PowersWhat 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.
- Without Nonintervention PowersIf 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:
- Being granted 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.
- 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:
- Outline of the More Detailed Version
(Unusual & Arcane — Ignore If Not Relevant)