Frequently Asked Questions about Probate
- What’s the probate process, simply & generally?
- What does “probate” mean?
- What is being proved by probate?
- To whom is the Will being proved?
- For what purpose is the Will being proved?
- What happens if someone dies without a valid Will?
- What is the difference between “testate” and “intestate”?
- What are “Letters” ? How are they obtained?
- Are ALL assets subject to probate?
- What is the Washington statutory Creditor’s Claim law? What benefits does it provide?
- How long does probate take?
- How much does probate cost?
- What are its advantages?
- What are its disadvantages?
- File any Will and Petition the Court for Appointment of Personal Representative (the “PR”).
- Send Notice of Appointment of PR to Beneficiaries, Heirs, and Other Interested Parties.
- Collect & Manage (& possibly Sell) Property.
- Pay Debts.
- Determine & Settle Any Taxes Due.
- Distribute Remaining Assets.
- Close the Estate.
Probate means “to prove,” from the Latin verb “probare.”
The Will of someone (the “Decedent”) who has died leaving a valid Will (ie, died “testate”). Specifically, what is being proved is that:
- The Will
- Was signed by its maker (its “Testator” (male) or “Testatrix” (female)), and
- Is the most current Will of the Testator/trix (ie, it has not been revoked).
- The Testator/trix was legally competent to make a Will:
- A person
- Of sound mind (ie, having “testamentary capacity” and lacking “insane delusions”)
- Who has attained the age of 18 years.
- The Will was made under lawful circumstances:
- Witnessed by at least two competent witnesses who subscribed their names to the Will while in the presence of the Testator/trix at his/her request, and
- Not made by mistake, restraint (duress), fraud, undue influence, or forgery.
Sidebar: What does “testate” mean?
Testate means “to make a Will,” from the Latin verb “testan.”
The Superior Court usually in the county in which the Decedent resided at death.
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:
- By collecting and managing Decedent’s property;
- By paying Decedent’s debts, last illness and funeral expenses, and any taxes due; and ultimately
- By distributing Decedent’s property to Decedent’s named recipients (the “Beneficiaries”), who “take under the Will” or “take by testate succession.”
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.
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:
- Appoints a Personal Representative (in other states, called an “Administrator” (male) or “Administratrix” (female)) according to a prioritized list provided by law; who ultimately
- Distributes Decedent’s property in shares to a prioritized list of recipients, the “Heirs” or “Heirs-at-Law”, provided by law, who “take by inheritance” or “take by intestate succession.”
|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?
Petition for Probate of Will & Letters of Administration With Will Annexed is filed, and an Administrator With Will Annexed is appointed:
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:
Letters are the document issued by the Court, evidencing its appointment of the Personal Representative:
- If Decedent died testate, the Letters are known as Letters Testamentary.
- If Decedent died intestate (technically, without a named Personal Representative able and willing to serve), the Letters are known as Letters of Administration.
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.
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:
- Decedent’s property inherited upon the deaths of his/her parents, as his/her separate property.
- Decedent’s home, as to his/her one-half interest in community property.
- Decedent’s interest in a vacation home, a boat, or an airplane, as a tenant-in-common (ie, not joint tenancy) with other joint owners.
- A life insurance policy owned by Decedent on his/her life and whose named beneficiary is his/her estate.
- Decedent’s IRA or a Keogh Plan for his/her benefit and whose named beneficiary upon his/her death is his/her estate.
Examples of Nonprobate Assets:
- Decedent’s car, as a joint tenant (ie, with right of survivorship).
- Decedent’s bank account, payable on death (“POD”) to one of Decedent’s children.
- Decedent’s securities account, transferable on death (“TOD”) to Decedent’s Trustee.
- Property subject to a valid Community Property Agreement, transferable to Decedent’s surviving spouse.
- A life insurance policy owned by Decedent on his/her life and whose named beneficiary is other than his/her estate (eg, his/her spouse or children).
- Decedent’s IRA or Keogh Plan for his/her benefit and whose named beneficiary upon his/her death is other than his/her estate (eg, his/her spouse or children).
- Property held in trust for the benefit of Decedent and whose named beneficiary upon his/her death is other than his/her estate (eg, Decedent’s Revocable Living Trust held for (i) his/her benefit during his/her life and (ii) his/her spouse or children following his/her death).
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.”
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:
- The legislature has instituted a straightforward, although relatively rigid, statutory procedure for either probate or nonprobate estates (as debtors) and creditors to follow, and provided that for those who successfully follow and complete it, four months later:
- Any creditor will have had sufficient time and opportunity to perfect his/her/its claim, and
- As for the assets that remain, the Beneficiaries and Heirs will receive clear title, assured that no creditor should be able thereafter to successfully pursue a claim against an asset to satisfy any of Decedent’s remaining unpaid debts.
- The procedure for identifying creditors involves:
- Publishing a Probate Notice to Creditors in Decedent’s resident county at death;
- Reviewing Decedent’s correspondence and records to identify possible creditors; and
- Sending a copy of the Probate Notice to Creditors to each such possible creditor, effectively inviting them to timely submit a Creditor’s Claim.
- The procedure for paying creditors involves:
- Paying creditors only following the proper and timely submission of a Creditor’s Claim.
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.
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:
- Decedent dies.
- By the end of the first week, the Personal Representative obtains Letters.
- By the end of the second week, the Personal Representative first publishes his/her Probate Notice to Creditors, beginning the four-month (sixteen week) Statute of Limitations period.
- At the end of the eighteenth week, the Statute of Limitations expires. By then, the Personal Representative has verified that all Heirs and Beneficiaries are willing to sign a Receipt & Waiver in receipt of their respective estate distribution.
- The Personal Representative concurrently makes distribution and obtains the Receipts & Waivers and then files the Receipts & Waivers and a Declaration of Completion of Probate with the Court, and the estate closes.
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.
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
The probate process provides:
- A neutral, third-party (a Judge) who can:
- Supervise the process,
- Ensure that it is proceeding according to law, and
- Resolve any disputes (eg, among Heirs and Beneficiaries, between them and the Personal Representative, or regarding title to property or legitimacy of debt).
- If the Creditor’s Claim procedure is employed: A method that extinguishes claims against the Decedent and his/her estate that is quick and fair to debtors, creditors, and Decedent’s Heirs and Beneficiaries.
- 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.