At its essence, probate involves the passing of a decedent’s property according to the decedent’s will or, if there are no will, heirs as determined by the legislature. Prior to beneficiaries or heirs receiving their inheritance, personal representatives must gather, organize and grasp the property and financial affairs of the decedent.
If a will names you the executor or executrix, or if you otherwise get the job, you need to understand Washington probate law and how to settle an estate. Tacoma probate attorneys guide personal representatives through the duties and issues to be faced in a probate proceeding. The tasks for which you may need legal assistance involve handling the will, locating and distributing property and assessing and paying the decedent's debts.
You will need to start a probate proceeding when the deceased person owned land in his or her own name. Probate also becomes necessary when the decedent held the property as a tenant-in-common with others. Unless the deed otherwise states, each tenant-in-common holds an equal, undivided interest in the property. Upon the co-tenant’s death, the beneficiaries of the decedent’s will or those who otherwise inherit from the decedent become co-owners with the surviving owners.
Some assets pass outside of the probate process because of how the property in question is titled. Under a joint tenancy with the right of survivorship, the surviving owner assumes the decedent’s interest and becomes the sole owner. In addition to land titles to the decedent and another as joint tenants with the right of survivorship, bank account agreements often provide for the survivor to own the account funds completely. Certain types of agreements also keep property or money beyond the reach of probate. Contract law determines the distribution of life insurance proceeds. That means, unless the life insurance contract designates the decedent’s estate as beneficiary, the proceeds do not become subject to the probate process.
Spouses in Washington can also provide in community property agreements that the surviving spouse gets the marital property rather than the estate of the spouse who dies first. Your decedent may have established a revocable trust, in which case the provisions of it decide who receives the property in the trust at death rather than the will or intestacy law.
A final ground for probate avoidance involves the value of the decedent’s property. Specifically, where the decedent did not own land or where total value of personal property does not exceed $100,000, the decedent’s beneficiaries or heirs can claim their shares via an affidavit.
If the decedent left a will, you as executor or executrix file a Petition for Probate in the county of death. You have 40 days after death to do so, even if all of the decedent’s assets are excluded from probate. You qualify through the court to become executor or executrix. If the decedent left no will, then the court appoints an administrator to handle the estate. Unlike a will, where the decedent decides, the court appoints administrators for the estates of decedents without a will according to a priority set by law. Generally, the surviving spouse (if one) or other next of kin get appointed if willing and able.
When you open the probate proceeding, you must name the beneficiaries in a will. Additionally, your petition must provide the names and addresses of those who would inherit had the decedent not left a will.
Acceptance of a will by the court does not automatically mean that it is valid. Disappointed heirs or others may challenge a will, seeking to undo the fact that they were disinherited or did not get what they considered their entitled share of the estate. Washington law affords a four-month period after admission of the will for these “interested” parties to contest the will. If you receive such a petition and want to uphold the will, you need to know how the will was created and signed and learn about the decedent’s frame of mind at the time of the making of the will.
A will contest may succeed if the decedent acted under duress or lacked the ability to understand what property the decedent owned or to whom the decedent was leaving it. Other attacks to a will focus on whether the decedent actually signed it and whether it was properly witnessed.
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The executor or administrator of the estate assumes the role of ensuring payment of the decedent's debts and taxes. Indeed, wills often have as early provisions that the executor or executrix pays debts and taxes. Such an obligation is already provided by law.
When probate is required, a personal representative must mail or deliver a notice to those creditors that the representative knows or should have known have claims against the estate. Those who receive mailed notice have 30 days thereafter to present their claims to the estate. As an executor or administrator, you also publish in a local newspaper notice of the estate and the deadline for creditors to submit claims. The bar date stands at four months after the first publication of the notice.
Washington probate law establishes an order for payment of creditors. Following administration expenses, funeral expenses get paid first up to a certain amount. The pecking order descends from there to paying bills arising from the decedent’s last sickness, wages for services rendered to the decedent within 60 days of death, taxes, judgments that represent liens against the decedent’s property, mortgages, and then other debts. Observing the priority becomes important if the decedent’s debts exceed the available assets to pay them.
In that light, the personal representative should identify which debts to dispute. Washington law prohibits the payment of estate claims barred by the statute of limitations, which sets the deadline for the filing of lawsuits. You will need to determine what limitations periods apply and whether they have run their courses as to particular debts. You might also dispute particular debts as already having been paid or invalid for reasons such as fraud by the creditor.
Typically, delivering property to the beneficiaries or heirs represents the last stage in probate. Even with a will, distribution of the assets may come with complications. If a beneficiary dies before the person making the will, you or a lawyer will need to determine if the will has alternate beneficiaries. If not, then Washington probate law determines the beneficiaries — usually children of the deceased would-be beneficiary.
Wills usually create trusts for beneficiaries who have not reached the age of majority or a certain age set forth in the will. In such cases, the personal representative delivers the property to a trustee.
The simplicity (or complexity) of the probate process depends upon what the decedent left behind. If you are an executor or administrator of a decedent’s estate, you will have the task of determining what the decedent owned, what the decedent owned, to whom the decedent owed it, paying properly-established taxes and debts and seeing that those entitled to inherit receive their due shares. To faithfully perform these duties, you may find yourself in need of legal professionals who can help you determine the rights of beneficiaries, heirs and creditors of the decedent and guide you in effective estate administration.