Opening a Washington Probate Estate

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.

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

1.  Obtaining a Certified Copy of Descendant’s Death Certificate:

Washington law no longer requires a Death Certificate for the Descendant to open a probate; nevertheless, some Judges may wish to review one, for example, to obtain independent evidence whether Descendant was survived by a spouse.  If convenient, obtain a certified copy of Descendant’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.

2. Determining the Proper Court

A probate for a Washington resident may be filed in the Superior Court of any county in Washington.
Go to 3 below.

  • Jurisdiction
    • Subject Matter Jurisdiction
      Bottom-line: As long as the Descendant 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)
    • 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.

    • 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 Descendant’s resident county at death, see: If Descendant 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:

    Filing Descendant’s Will

    If Descendant died without a Will — Go to 5 below.

    For discussion of any of the following, see:

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

    5. Petitioning for Letters

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

    6.  Obtaining Nonintervention Powers

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

    If:

    • Descendant’s Will names you as Personal Representative, and
    • 40 days have elapsed since Descendant’s death


    Go to 8 below.

    For discussion of any of the following, see:

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

    • The combined probate and nonprobate estate is solvent (ie, has more assets than debts), AND
    • Any of the following three situations is true (RCW
      11.68.011(2)
      ):

      • If Descendant died testate: Descendant’s Will names the petitioner as Descendant’s Personal Representative; OR
      • If Descendant died intestate:
        • The petitioner is Descendant’s surviving spouse, and
        • Descendant’s estate consists ONLY of community property, and
        • At the time of filing the petition, all of Descendant’s living children are also the petitioner’s children (eg, Descendant has no living children of a prior marriage); OR
      • The "Catch-all" provision applies:
        • The petitioner was not a creditor of Descendant at Descendant’s death, and
        • It would be "in the best interests of Descendant’s beneficiaries and creditors" if Descendant’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.

    7. Avoiding Notice of Hearing

    If:

    • You qualify for Nonintervention Powers under any but the "Catch-all" provision, and
    • 40 days have elapsed since Descendant’s death

    Go to 8 below.

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

    8.  Avoiding Posting Bond

    If Descendant’s Will waives BondGo to 9 below.

    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.

    9. Avoiding Designating a Resident Agent

    If you are a Washington resident Go to 10 below.

    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.

    10. Drafting a Proposed Court Order

    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.

    Select the appropriate form from among the following three alternatives:

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

    11. Filing an Oath of Personal Representative

    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.

    After the Court appoints you as Descendant’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 Descendant 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 Descendant’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.

    13.  Filing a Probate Notice to Creditors

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

    If Descendant died within the last twenty months, complete and sign a: Probate Notice to Creditors form.

    Choose a legal newspaper in the county of Descendant’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 "Descendant’s Social Security Number."

    If Descendant 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 Descendant’s resident county at death, you are required to file and publish a Probate Notice to Creditors in the county of Descendant’s residence at death).

    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:

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

    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.

    Giving Notice of Your Appointment

    The Issue: Having obtained your Letters, you must promptly send notice of your appointment to interested parties, namely, Descendant’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 Descendant and the estate.

    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 Descendant’s combined probate and nonprobate estate. Who Are These "Heirs and Beneficiaries?"  To satisfy this requirement:

    • If Descendant Died Testate:
      • Complete and sign a Notice of Appointment of Personal Representative and
        Pendency of Probate & Declaration of Mailing (With Will) form.
      • Attach to your Notice a copy of Descendant’s Will and make sufficient copies of that combined document (Notice + Will).
      • Mail a copy of that combined document to each of the persons and at the addresses listed in Paragraph 4 of your Petition for Probate or Petition for Letters of
        Administration With Will Annexed
        .
      • File that combined document (original Notice + copy of Will) with the Court (submitting a copy of that combined document for conformation and return to you).
        Timing: Within 20 days of your appointment.

      Side-bar: Although not required by the pertinent statute (RCW 11.28.237), Constitutional due process requires that a copy of any Will of Descendant 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).

    • If Descendant Died Intestate:

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

    • Give Notice of Appointment of the Personal Representative by letter to the consulate of the foreign nation in which the Heir or Beneficiary resides, and
    • File a copy of the letter with the Court.

    For further information, contact:

    U.S. Department of State
    Office of Foreign Missions
    2202 "C" Street NW, Room 2238
    Washington, D.C. 20520

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

    • Showing that the person is an heir or beneficiary, and that his/her name or address cannot be reasonably determined, and
    • Asking the Court for an Order allowing notice to be given to such person by publication. RCW 4.28.140 and following.

    2.  To WashingtonDepartment 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 Descendant 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:

    • You are confident that you are fully aware of not only all of Descendant’s potential creditors but also the amount and nature of each potential claim,
    • You have no question that each potential claim is legitimate, and
    • You intend to pay each fully and promptly.

    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 Descendant’s Social Security Number, but GR31 prohibits filing Social Security Numbers with the Court.  Consequently, make sure that you place Descendant’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.

    • If you DO intend to publish a Probate Notice to Creditors within 30 days of your appointment:
      • Follow the procedure for filing and publishing a ProbatevNotice to Creditors — see: Publishing a Probate Notice to Creditors
      • Follow the procedure for:
        • Adding Descendant’s Social Security Number to a copy of your Probate Notice to Creditors and mailing that document to WDSHS, and
        • Preparing a Declaration regarding these actions and filing it with the Court — see: Giving Notice toWDSHS.

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

      • Add Descendant’s SSN to a copy of it,
      • Mail that copy to WDSHS, and
      • Prepare and file the Declaration with the Court.
    • If you DO NOT intend to publish a Probate Notice to Creditors within 30 days of your appointment:
      • Download a Notice of Appointment of Personal
        Representative and
        Pendency of Probate to WDSHS & Declaration of Mailing form.
      • Complete and sign the form.
      • Make a copy of it, add Descendant’s Social Security Number to it, and mail the copy to the WDSHS at the address shown on the form.  (It would be good practice to make and keep in your files a copy of the copy sent to WDSHS, as evidence that you complied with the WDSHS notice requirements.)
      • File its original (without Descendant’s Social Security Number) with the Court (with a copy for conformation and return to you).

        Timing: Within 20 days of your appointment.

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

    If Descendant 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:

    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:

    • Internet or
    • Telephone — and receive your EIN immediately.

    To apply by telephone:

    • Complete and sign the Form SS-4 as if you were going to mail it.
    • Telephone 800 829-4933 between 7:30 AM and 5:30 PM Eastern Time (the IRS facility is in Philadelphia).
    • Give the IRS representative your information.  He/she will assign you an EIN and may request that you mail the original of your completed and signed Form SS-4 within 24 hours to a specified address.

    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 Descendant’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:

    • A Court-certified copy of your Letters, or
    • A copy of your Letters that has been certified within so many days, eg, 10, 30, or 90, or
    • Not only a certified copy of your Letters but also a sworn statement that your Letters are current and have not been revoked.  This statement is known as an "Affidavit of Personal Representative."  To prepare one, download, complete, and have notarized whichever of the following two forms is appropriate:
      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.