Washington State’s Probate Information
Following a loved one’s death, the question of what to do with their estate becomes of great importance. Many people pass unexpectedly, and don’t leave a will, leading to questions regarding who among the remaining loved ones will inherit the resources left behind.
Do I Need to File a Probate in WA?
There are currently no legal requirement to file a probate in the state of Washington. However, this very common legal procedure is the way that some assets must be formally passed from the person who is deceased to his or her heirs or beneficiaries.
Some people don’t want to probate a will. There is no requirement in place that necessitates a will or property go through probate, but if the decedent owned property that is not arranged specifically to avoid probate (see below), there is no way for the beneficiaries to obtain legal ownership without it. There are some exceptions to this. Florida law allows a family to own property in a decedent’s name if they continue to pay taxes and do not sell it.
It is possible to avoid probate entirely with careful planning. This is desirable for some people because doing so not only reduces legal fees, but it can mean avoiding the estate tax, which can take a significant amount of a very wealthy estate. Avoiding probate can also protect privacy, since some of the records may not be available to the public.
One of the most popular ways to avoid probate is through the use of a revocable living trust. Assets are placed in the trust, but they can used by the trust creator during his or her lifetime. Upon death, assets in the trust are passed to the trust beneficiaries just by operation of the trust document. No probate is necessary.
Life insurance policies pass property outside of probate. Whoever you name as beneficiary on your life insurance policy will receive the death benefit directly with no probate process.
Some retirement accounts can pass outside of probate. The account owner names a beneficiary and that person then receives the balance of the account after the owner’s death. Payable on death accounts operate the same way.
Real estate that is owned as joint tenants, or joint tenants by the entirety passes outside of probate as well. This type of property has two owners. When the first owner passes away, the second one automatically owns the property.
Most families will have some contact with a probate court whether or not a will was created, but in most cases, the process is streamlined and inexpensive.
Articles on Washington State ‘s Probate Laws
Nonprobate assets are assets that are not distributed through you will. These assets pass to beneficiaries according to a document or other instrument in which you direct how the asset is to pass upon your death. Among the most widely understood nonprobate assets are life insurance policies and retirement plans where you name a beneficiary through the plan or policy documents. Nonprobate assets can also include financial accounts that are held jointly with right of survivorship or have a transfer on death designation.
During the intimidating and difficult process of navigating a probate sale, perhaps the most important step is to ensure that you’re not doing it alone. Seeking professional help through the medium of a real estate professional is an investment that pays dividends through the entire process.
It’s not uncommon for wills to be written years before a person dies, as factors involved in the aging process take hold. At the time of death, the executor should sign the will in court to begin the probate process. But it’s not always that simple. Sometimes an executor dies first. Or an executor can decide they no longer want the job. So, what happens if you do not probate a will?
Washington State Probate FAQ
Who is your Attorney-In-Fact?
Who is an Agent?
Who are Heirs?
Who are Beneficiaries?
What is a Guardian?
What’s a Guardian ad litem?
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.
What’s a Disclaimer?
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.
What’s a Declaration?
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.
What’s a Bond?
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.
What is an Inventory?
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.
What is a Community Property?
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.
What is Codicil?
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.
What Is an Attestation?
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.
What Is Probate?
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.
What is a Letters Testamentary?
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.
What is a Community Property Agreement?
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.
What Are Nonintervention Powers?
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.
What are General Bequests?
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.
What’s a Health Care Directive? (Living Will)
This website exists to serve the people of Washington State. To be a resource for educating individuals and families on navigating through this process.