Documents Typically Required In Order to Start a Probate Case in Washington
To initiate a probate proceeding, you’ll need to assemble the correct package of documents and file them with the Court. Commonly, the main objective is to obtain the correct order from the court that, among other things, directs the clerk to issue letters testamentary. The letters identify you as the appointed legal representative of the estate. Third parties require proof of letters in order to grant you access to estate assets. For example, banks require letters in order to grant you access to decedent’s bank account.
Documents required in the event decedent left a valid last Will and Testament:
1. Verified petition;
2. Original Will and if applicable, original version of any codicil or person property list;
3. Self-proving Will affidavit;
4. Proof of Service of any notice required to be provided;
5. Oath of personal representative;
6. Fiduciary Bond;
7. Proposed Order granting verified petition.
In addition to the above, although not required, a certified copy of the death certificate should be provided to the court with social security number redacted. This will be presented to the court without filing with the clerk.
Commencing a probate proceeding starts with a verified petition. The petition is a request for the court to provide judicial relief. Relief typically sought is to admit the Will for probate, appoint the personal representative, and if appropriate, grant the personal representative nonintervention powers, waive the requirement that the personal representative post a fiduciary bond, and/or enter an order of solvency. Therefore, the verified petition should state precisely the relief requested and recite those relevant facts that enable the court to determine if there is a basis for granted such relief.
Jurisdiction. A Washington court can only grant relief requested if it has the authority to do so (this authority is called “jurisdiction”). Under RCW 11.96A.040(1), a superior court in any county in Washington has jurisdiction to probate a Will:
When a Washington resident dies;
When a nonresident dies in Washington; or
When a nonresident dies outside Washington.
Therefore, the petition must recite those facts that would address the issue of whether the court has jurisdiction. Relevant information bearing on such facts include the name of the decedent, date of death, county of residence at death, and whether decedent owned or possessed assets in the state of Washington.
Venue. Venue refers to the specific court (e.g., superior court of king county) that will adjudicate the matter. Rules pertaining to venue for probate cases can be found at RCW 11.96A.050. Venue will be the court selected by petitioner. This can be challenged within 4 months after notice of probate proceedings are mailed to heirs and other interested parties. If challenged, deference will be given to the county where decedent lived at time of death if a Washington resident, or if not a resident, then the county where estate assets are located or decedent died.
Petitioner. The petition should identify the petitioner and his/her place of residence. Since out of state petitioners may have to designate a resident agent in Washington, if the petitioner is a Washington resident the petition should state the same and indicate the county where petitioner resides. RCW. 11.36.021(6).
The Will. Assuming there is a valid will with supporting witness affidavits, the petition must indicate the same, the date the Will was executed, and call attention to the fact that the original Will and witness affidavits are enclosed with the petition.
Solvency. The court will want to know whether the estate is expected to be solvent. A solvent estate is a requirement for the court to grant the petitioner nonintervention powers. RCW 11.68.011(2). Also, if bond is required to be posted by the executor before he/she gets letters testamentary, a court will want to know about the value of the estate’s assets to determine the amount of the bond. Therefore, the petition should further reflect an estimated net value of the estate by providing an estimate of estate assets and liabilities (both probate and nonprobate assets).
Personal Representative Nominated in Will. Identify the party nominated in the Will to serve as personal representative. If the petitioner is not nominated in the Will, those facts providing the basis for petitioner to serve as the personal representative must be stated. Notice may need to be given to certain parties in this instance, and that issue should be addressed in the petition.
Nonintervention Powers. Nonintervention powers allow the personal representative to administer the estate without court intervention. Nonintervention powers allow probate cases to be administered cheaper and more efficiently. Nonintervention powers will be granted if:
The Will does not state such powers should NOT be granted; AND
The estate is solvent (considering probate and nonprobate assets); AND 1 of the following is satisfied:
The petitioning personal representative is nominated to serve as personal representative in the Will; OR
If the decedent died without a Will, then the person asking for nonintervention powers is the decedent’s surviving spouse or registered domestic partner (RDP), the estate consists entirely of community property, and the decedent had no children from a prior relationship; OR
The person asking for nonintervention powers is not a creditor of the estate and nonintervention powers would be in the best interests of beneficiaries and creditors.
Recite those facts in the petition that warrant granting of nonintervention powers per this rule.
Bond. Probate proceedings require the executor to post a bond, unless the Will provides for waiver of bond. The petition must address whether bond is required. If the petition seeks a bond waiver, then it must state the basis for waiver (e.g., the Will provides for waiver of bond).
Heirs. The petition should include a schedule listing the names, addresses, ages, and relationships to petitioner of each legal heir, devisee and beneficiary of probate and nonprobate assets. Certain notices must be sent to these heirs. Also, the court will want to know if minor beneficiaries are involved to determine if a guardian ad litem must be appointed to protect the minor’s interests throughout the probate proceedings.
These are the minimum requirements for a verified petition. There may be other issues that need to be addressed depending on the circumstance.
The original versions of all testamentary documents must be provided to the court. These include all of the following that if they exist:
Last will and testament;
Personal property memorandum;
Separate writing incorporated into the Will by reference in the Will.
A codicil is Will that modifies or partially revokes an existing earlier Will. It need not refer to or be attached to the earlier Will. RCW 11.02.005(2). Since it is technically a will it must meet the same requirements for making a valid Will found at RCW 11.20.020.
A personal property memorandum is a separate writing that may direct the disposition of tangible personal property of decedent not covered by a Will that becomes irrevocable on decedent’s death. To be effective: (1) the Will or trust must refer to the writing; (2) the writing is in decedent’s handwriting or signed by decedent; and (3) describe the items of personal property and recipients of the same. RCW 11.12.260(1).
Affidavits to Prove Validity of Testamentary Documents
To be adjudicated as a valid will by a probate court, the court must receive proof that the will meets the requirements for a valid will. This is done in the form of testimony of the two persons who witnessed the signing of the will that, in fact, such witnesses actually witnessed the will signing and then signed the will as witnesses.
The requirement of proof can cause practicable problems given the passage of time between signing a will and presenting it for probate after the testator dies. For example, you may have trouble locating a witness or one or more of the witnesses has died. Washington law allows an executor to bypass the initial hearing in probate court if the will is presented to the court with a “self-proving” will affidavit.
To qualify as a self-proving will affidavit, the two witnesses must give a sworn statement setting forth the fact that they witnessed the testator sign the will. This affidavit must be notarized. The self-proving will affidavit can be executed before the testator dies, or after at the request of the executor. The self-proving will affidavit can be affixed to a will or attached to a photocopy of the will. RCW 11.20.020.
The affidavits described above should be submitted with the original Will along with the other pleadings in order to commence probate proceedings.
Proof of Providing Requisite Notice
Advance notice of the petition must be provided in certain instances. For example, under Washington law the surviving spouse or registered domestic partner (RDP) is entitled to administer community property. If he/she does not petition for appointment as executor within 40 days after decedent’s death, then the surviving spouse is deemed to have waived this right. But, if someone other than the surviving spouse or RDP petitions for appointment as executor prior to the expiration of 40 days after decedent’s death, then such petitioner must give notice to the surviving spouse or RDP regarding such petition and provide proof of the same. RCW 11.28.030. Moreover, there are other instances in which advance notice must be given, such as notice to heirs and interested parties when a hearing on the petition is required.
Oath of Representative
A prerequisite to issuance of letters testamentary is that the personal representative give an oath that he/she will fulfill his/her duties according to law. This oath must be notarized. RCW 11.28.170.
If required it must be posted before the clerk will issue letters testamentary.
Proposed Order Approving the Petition for Probate
The petitioner must submit a proposed order to the court granting the verified petition and more specifically, the relief sought in the petition described above.
Estate Planning and Probate Attorney
Christopher R. Chicoine, PLLC