What is a Probate?
Probate is the process whereby a legal representative is appointed to distribute Decedent’s property and pay Decedent’s debts. Probate is basically administered in the following stages:
Marshalling Assets and Determining Liabilities
Paying Debts and Other Expenses
Is Probate Required?
Probate is required if probate assets (including debts against such assets such as mortgages) are less than $100,000 and do not include any real property assets. Probate assets are those that pass pursuant to a person's last will and testament, or if there is no will, by laws of intestate succession.
What's the Process of Opening Probate?
This is done by petition normally filed by the nominated executor. The petition asks the probate court to admit the Will, appoint the executor (typically to serve without bond and with nonintervention powers), and direct the Clerk to issue letters testamentary to the appointed executor. The petitioner must prove to the Court that the Will is valid. The easiest way to do this is by filing a self-proving Will affidavit with the Will. The letters testamentary confer legal authority on the executor to handle settle Decedent’s estate (such as re-titling and distributing property). If the letters confer “nonintervention powers”, then the executor can administer the estate without the need for court approval.
Documents filed with the petition include:
Original Will (with coversheet)
Death Certificate (with coversheet)
Petition (with case designation sheet)
Proposed Order granting the Petition
Oath of Representative
How Long is Probate?
Unlike other jurisdictions, such as California, probate in Washington state is relatively inexpensive and less complicated. In fact, Washington has one of the most efficient probate systems in the country as probates can be administered by an executor generally without court involvement.
The duration of a probate proceeding truly depends on a number of factors, including the nature and extent of a Decedent’s assets and debts; whether an estate tax return must be filed; and whether the Decedent’s Will is contested. There is no deadline by which an estate must be closed. Straightforward and relatively small estates with few assets typically last from 6 months to 1 year.
Generally, the more probate assets the longer it will take the executor to distribute or sell such assets. For example, if the decedent left a home to be sold, probate may last as long as it takes to sell the home (although the home may be transferred to the heir(s) and then sold outside probate).
If estate tax returns must be filed, such returns are generally due 9 months after the date of Decedent’s passing (unless an extension is granted).
If a notice to creditors is published, creditors will have 4 months after the date of publication by which to present claims against the estate.
Heirs and other interested parties have 4 months after a Will is admitted for probate by which to challenge the Will. Will contests can last months (likely more than one year) to fully resolve.
My Loved One Recently Passed. What Must I Do With the Will?
Washington law requires that a person in possession of a decedent’s Will must file the Will with the appropriate court within 30 days after the decedent’s death. This deadline is 40 days if the person in possession of the Will is nominated as the executor under the Will. RCW 11.20.010. This law applies even if no probate will occur.
How Do I Get My Loved One's Will from the Will Repository?
If your relative has passed and you need to file with Will with the court, either as a Will only case or to initiate a probate proceeding, you must file a motion with the court to withdraw the will and proposed order granting the motion to withdraw the will.
(Note the linked motion and proposed order are for filing in King County Superior Court. For other courts be sure to change the court caption).
What Are an Executor's Nonintervention Powers?
Nonintervention powers allow probate estate to be administered much more efficiently than without them. Generally, nonintervention powers allow estate executors to settle a decedent’s affairs without involvement of the probate court. RCW 11.68.085.
Nonintervention powers extend to a broad array of actions the executor may take in order to settle an estate. Limited examples of nonintervention powers include selling property of the estate; determining who stands to inherit from the estate; making distributions to heirs.
The probate process is less costly and less time-consuming when nonintervention powers are granted. Nonintervention powers are available whether the decedent left a valid will or not. The procedure for obtaining nonintervention powers, however, is easier if the decedent left a will that indicates the nominated executor may serve with nonintervention powers.
What are Nonprobate Assets?
Nonprobate assets are “those rights and interests of a person having beneficial ownership of an asset that pass on the person's death under a written instrument or arrangement other than the person's will.” RCW 11.02.005(10). In other words, in Washington, nonprobate assets pass outside a person’s will.
Examples of nonprobate assets include:
Property passing via joint tenancy with right of survivorship
Joint bank account with right of survivorship
Transfer on death deed
Payable on death account
Transfer on death investment account
Trust property if the trust becomes irrevocable on the person’s death
Community property agreement
What If I Own Real Estate Outside Washington?
Washington courts only have jurisdiction over property located in Washington. Therefore, probate may be required in that jurisdiction (called “ancillary probate”) in order to retitle the property. Whether ancillary probate is required depends on how the property in that jurisdiction is titled. If it is titled in such as way as to qualify the property as a nonprobate asset (meaning the property will pass pursuant to a written instrument that is not a last will and testatement), then ancillary probate is likely not required.
Examples of forms of title that would typically avoid ancillary probate include:
Joint tenancy with right of survivorship;
Transfer on death deed;
Title in the name of the trustee of a trust.
Will I Be Required to Post an Executor's Bond?
A bond protects an estate’s heirs, creditors and other interested parties from dissipation or loss of assets of the estate during its administration. In probates without a valid will, the executor is usually required to post a bond prior to obtaining letters of administration authorizing the executor to settle Decedent’s estate. In Washington state, the executor is not required to post bond if:
The Will indicates the executor can serve without bond;
The executor is the surviving spouse or registered domestic partner of Decedent and it appears the entirety of the estate will be distributed to such surviving spouse or registered domestic partner;
A bank or trust company is the executor; or
Waived by the court.
The court may waive the bond if all other heirs and beneficiaries give consent to waive the bond. If consent is obtained, this should be filed with the court with the petition asking for waiver of the bond. Note, if you are asking for heirs to waive right to notice of nonintervention powers, it would be wise to include in that same document a waiver of the requirement that the executor post bond.
Alternatively, the court may waive the bond if an alternative form of security is provided. Since the bond amount is typically based on the amount of liquid assets of the estate, one such form is acceptable replacement security is a signed receipt from the financial institutions holding such liquid assets that the executor is blocked from accessing funds unless and until ordered by the probate court. RCW 11.28.185, 11.88.105.
According to a local surety company, as of 2021, bond premiums charged by that company equate to 0.5% (or $500) for every $100,000 of estate assets
How Do I Open an Estate Bank Account?
The executor of an estate is charged with the duty to collect, safeguard and administer all estate assets. To comply with this obligation it is advisable that the executor close decedent’s personal accounts and transfer the funds into one estate checking account. A single account from which estate administration expenses (and ultimately beneficiary distributions are made) promotes efficiency, avoids commingling, and makes rendering an accounting to heirs much easier than if no account was created.
Most banks will require (1) a federal employer identification number (EIN), which is the identification number for the estate, similar to an individual’s social security number; and (2) proof the executor is authorized to act for the estate in the form of the certified copies of the letters testamentary (or administration if the decedent left no valid Will) plus the order entered by the probate court admitting the Will and appointing the executor. Therefore, once you obtain the order from the commissioner directing the clerk to issue the letters, ask the clerk cashier for certified copies of the letters plus order. This is different than conformed copies. A small fee will apply.
Obtain an EIN by submitting form SS-4 to the IRS. This can be done via mail, telephone, fax or online portal. You will need the decedent’s social security number to complete the application. Internet EIN applications are processed instantaneously. Here is a link to the internet application.