- Does not require probate, but
- Does require any Will to be filed with the Court within at most 40 days of death.
Someone (the “Descendant”) has died and you believe something legal needs to be done as a result of the Descendant’s death. Here’s a summary of what may or does need to be done and why:
Furthermore, any asset titled in Descendant’s name needs to have the Descendant’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 Descendant’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.
If Descendant 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 Descendant’s probate assets — see Paragraph E.
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.
Why? — Because:
The process of paying Descendant’s debts can get a little complicated depending on the situation:
Regardless of whether or not a probate is filed, those persons responsible for paying Descendant’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.
If Descendant 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.
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 Descendant 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 Descendant’s probate assets include:
Practically speaking, you will likely need a traditional probate if there is any question regarding the identity or nature of Descendant’s assets, heirs, or beneficiaries. See Paragraph E.
If Descendant at death had no debts or other liabilities: A probate in Washington appears unnecessary. Go to 4 below.
The major benefits available from following Washington’s Creditor’s Claim Procedure are:
Consequently, by following this procedure, Descendant’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 Descendant’s creditors, known or unknown.
a probate may be required there under the laws of that jurisdiction.
Jargon: If a probate is filed in Washington for a Washington resident Descendant and another probate is filed outside of Washington for the same Descendant, 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.
If the value of Descendant’s “probate assets” exceeds $100,000 or if Descendant’s “probate assets” consist of ANY real property: Go to 2 below.
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”:
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 Descendant’s debts and taxes (including both income and estate taxes), are left to the takers of Descendant’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 Descendant’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 Descendant’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:
In effect, your grant of Nonintervention Powers by the Court and your ability to probate Descendant’s estate using Nonintervention Powers are what should allow you to “do it yourself” without necessarily engaging an attorney.
(Unusual & Arcane — Ignore If Not Relevant)