A probate is a legal process that comes to the forefront in the wake of someone’s death. A person is designated by the court to sell or transfer a deceased person’s belongings, pay off their bills, manage tax issues, distribute the remaining assets according to the person’s will, and then properly close the probate. If there is no will, you distribute the assets according to Washington’s default law on distribution to heirs. Seems simple, right? Kind of, but in return for that simplicity, the person who is appointed needs to carefully follow the law, including sending out the appropriate notices to the other people interested in the estate so they can defend their rights if needed. Washington courts do not normally supervise the administrator of the estate. The administrator is on his or her own. But failing to follow the rules can get you in trouble and can sometimes be costly.
Your “agent” is the person you name in your power of attorney to manage your financial and/or health care matters. Under Washington law, this person can also be referred to as your “attorney-in-fact.”
A will is valid if it is signed by the testator and two witnesses. However, before it can be admitted to probate, the witnesses must appear in court to provide testimony regarding the will signing ceremony. In the alternative, the petitioner can present the court with a document, in which the two witnesses swear or declare (i.e., “attest”) that they were present when the testator signed the will, they signed as witnesses in front of the testator, the testator wanted them to be his/her witnesses, the testator understood that this was his/her will, and that the testator appeared to be of sound mind. The attestation of the two witnesses can be either (1) notarized, or (2) can be in the form of a valid declaration.
Your “attorney-in-fact” is the person you name in your power of attorney to manage your financial and/or health care matters. Under Washington law, this person can also be referred to as your “agent.”
If you have a will or trust, the people whom you name to inherit under these documents are described as beneficiaries. These may or may not be your “heirs,” who are the family members who would inherit under Washington’s default law on inheritance (see “Heirs”).
For probates, a bond is a type of insurance policy whereby a bonding company guarantees that if the personal representative is liable for any wrongful act, the bonding company will pay the harmed party up to the bond amount.
An amendment to a person’s will is called a codicil. A codicil must meet all the requirements of an ordinary will, including being signed by the testator and witnessed by two people. To admit a codicil to probate, the court will require a proper attestation by the witnesses, as the court does with a will.
Washington law generally defines community property as those assets that you and your spouse acquired during your marriage regardless of how the asset is titled. Separate property is defined as property that you acquired prior to the marriage, and property that you inherited or that was gifted to you even if the gift or inheritance was acquired during the marriage.
A typical community property agreement is a document whereby you and your spouse agree on three basic principles: (1) that all assets that you currently have are community property, (2) all assets that you accumulate in the future will be considered community property, and (3) upon the death of the first spouse, all such community property will immediately vest in the surviving spouse. This is commonly used to make the transfer and acquisition of assets easier on the surviving spouse when the first spouse dies.
A declaration is an unsworn statement that has the same validity under Washington law as a sworn statement. To be a valid replacement for a sworn statement, however, the written statement or declaration must include language certifying the declarant’s understanding that the declaration is made under penalty of perjury under the laws of the state of Washington, that the contents of the document are true and correct, and recite the date and location that the document was signed by the declarant. A declaration is often used in Washington instead of a sworn statement, in which a notary would be needed.
A disclaimer is a written document in which someone rejects all or part of an inheritance. This document must be signed within nine months to be effective.
A guardian is a person appointed by the court to manage the financial and/or healthcare affairs of a person who lacks the capacity to manage his or her own affairs. The court can select a person or a professional guardianship company to serve in this role, although often it is a close relative or friend who is acquainted with the incapacitated person and willing to take on this responsibility.
A guardian ad litem is a person selected by the court to investigate issues on behalf of a child or incapacitated adult. If a probate is started in Washington, the court is required to appoint a guardian ad litem to look after the interests of any heir or beneficiary who is under the age of 18 or who is otherwise incapacitated.
A general bequest is a gift that must be paid out of the general assets of the estate. For example, a gift of $5,000 to a charity or a family member is a general bequest.
A health care directive informs doctors and your family regarding your preferences and directions for the administration and withdrawal of life-sustaining medical treatment in the event you have a terminal illness and you cannot speak for yourself or if you are in a permanent unconscious condition. These documents can vary in complexity, and can also include special directions for how you want to be treated if you are ever diagnosed with a mental health condition such as dementia or Alzheimer’s disease.
The heirs of an estate are those individuals who are entitled to inherit your estate if you have no will. In such cases, Washington law describes how your estate should be distributed. For instance, under this law, your spouse would inherit all community property, and your separate property would be split between your spouse and children. If you have no children (and parents living), your spouse would inherit all separate property too. If you have no spouse, your children would inherit your entire estate. If you have no spouse or children, your parents would inherit your estate. This law goes on and on until there are no more descendants of your grandparents left to inherit your estate. Only then would your estate pass to the State of Washington, which is known as “escheating” to the state.
An inventory is a list of assets that the decedent left behind with each item valued as of the date of death. Washington law requires the inventory to be separated by (1) real property, (2) stocks and bonds, (3) mortgages, notes and other written evidence of indebtedness owed to the decedent, (4) bank accounts and money, (5) furniture and household goods, and (6) all other personal property. If there are any mortgages or encumbrances on any of the property, that should be listed too.
When a person is appointed by the court to serve as personal representative, the clerk will issue that person Letters Testamentary. This is a one-page document that can be used by the personal representative as proof that he or she has been appointed by the court and has the power to administer the estate.
These powers allow your personal representative to manage your estate without having to seek court permission to do simple tasks, such as selling assets, paying bills or distributing assets to beneficiaries. It is the key to Washington’s efficient probate system. Without it, your personal representative would need to file pleadings and ask permission from the court before performing basic tasks of estate administration.