Probate is the court-supervised process by which an estate is administered after a person passes away. Assets must be accounted for, located, and in some cases, appraised. Valid debts must be paid, and creditors must be notified. Taxes must be paid. Any issues about the will or family disputes regarding the estate are also addressed during the probate process. Once these matters have been settled, assets are distributed to beneficiaries as instructed in the will or by intestate laws (if there is no will).
Probate isn’t required in all situations, and some assets are not subject to probate at all. Some examples of assets that would not be subject to probate include joint bank accounts, jointly owned property, property or assets held in trust, and other property or assets like life insurance where a beneficiary has been named or where a contractual agreement exists. Estate planning lawyers in Washington can help you structure your estate so that the estate doesn’t have to go through probate at all, or structure the estate so that your family can go through Washington’s “simplified probate” process.
The person who is responsible for managing the probate process is typically the person named executor (or personal representative) in the will. If there is no will, a family member, or other trusted individual, may need to be appointed by the court. If you have been named the executor of a will or if you have decided to serve this role, it can feel like a big responsibility. The idea of having to file documents with the courts might feel overwhelming, especially while you’re grieving a loved one’s death. Fortunately, with the help of a Washington probate lawyer, in most cases, probate is a formality that involves submitting documents to the appropriate authorities, ensuring that debts and taxes are paid and that creditors are notified, and distributing the estate to beneficiaries as written in the will, or as determined by intestate laws, if there is no will.
An estate planning lawyer in Washington at Truce Law can review your situation to determine whether probate or “simplified probate” is required, and help you navigate the probate process. And if you’re thinking about estate planning and are concerned about how the probate process might affect your family, the estate planning lawyers in Washington at Truce Law can either help you structure your estate to help make the probate process go more smoothly for your family and beneficiaries, and in some cases, help your beneficiaries avoid the probate process entirely.
If you take proper steps, in most cases, probate can be completed within a few months (counting the deadline for creditors to make a claim on the estate). Yet, there are situations where probate can become more complex. If there is a will, but it wasn’t properly validated, or if there is a will and family members dispute its validity, or if there are disputes among family members about how to administer the estate due to ambiguities in the will, the probate process can drag on for many months or even years. In these situations, it can be helpful to have a family lawyer to represent your interests and protect your rights. The Washington family attorneys at Truce Law use the collaborative process to help families resolve some of the most difficult disputes that can arise in family law, and our estate planning attorneys may be able to help your family navigate some of the conflicts that can arise during the probate process.
In this article, we’ll explore topics related to probate, to help you navigate the probate process if you’ve been named executor of an estate.
- What are my Responsibilities as an Executor?
- What if I Don’t Want to Serve as Executor?
- What if There’s No Will?
- What is the Simplified Probate Process, and Can I Use It?
- What Happens if the Will is Contested or if Multiple Successors Make a Claim?
- What Issues Can Make Probate More Complicated?
- How Much Will Probate Cost?
What are My Responsibilities as an Executor?
A person named executor (also known as a personal representative), has certain responsibilities when administering the estate. These are fiduciary duties, meaning that if you are an executor of an estate, you have a legal responsibility to act in the best interests of all beneficiaries. Breach of fiduciary duty can result in legal issues, lawsuits, and costs. A family lawyer in Washington can help you fulfill your responsibilities as an executor so that you meet your fiduciary duties to beneficiaries.
Your responsibilities as an executor include:
- You’ll need to open the probate process with the Superior Court Clerk or Ex Parte via the Clerk if probate is required. If there is a will, it must be produced, and if there is no will, you would petition the court for authority to administer the estate. Probate is opened when the court appoints a person to serve as executor.
- Next, you’ll need to notify all heirs about your appointment as executor. This includes notifying heirs who may not be named in the will. A family lawyer in Washington can help you make a list of heirs you must notify.
- As executor, you’ll need to identify, account for, locate, and appraise probate assets. If probate assets include property in states other than Washington state, you might need to open probate in states that have jurisdiction over this property. Your family lawyer can help you locate and account for assets, and help you understand your responsibilities regarding probate. This process can be easy or more complex depending on the deceased person’s financial situation and depending on whether the person put an estate plan in place that thoroughly and clearly identified assets. Properly appraising the estate is necessary for tax purposes and for addressing creditor’s claims. Sometimes an estate includes complex assets, like business interests or valuable digital assets.
- The executor files estate tax returns. The deceased person’s taxes must be paid, and if the estate is subject to estate tax, these taxes must be filed and paid. If you are the executor of a high net-worth estate, you might want to speak to a family lawyer. Federal and state estate taxes can add complexity to the probate process. Additionally, the state may have a valid claim on the estate if your loved one received nursing home care through Medicaid, or if your loved one received support through state disability programs.
- The executor sees to it that the estate’s debts are paid, and creditors are notified. It is the executor’s responsibility to pay valid debts. Debts can include mortgages, credit card bills, medical bills, nursing home bills, and any unpaid child support. You’ll also need to send notice to all creditors. The rights of creditors to make a claim against the estate depends largely on how notice is served under RCW 11.40.051. If you know of a creditor and provide direct notice, the creditor has only 30 days to make a claim against the estate. Yet, there might be creditors that an executor may not know about. If you publish a proper death notice in a local newspaper, creditors have four months to make a valid claim. If you fail to publish a valid notice of death, creditors have 24 months to make a claim on the estate. A family lawyer in Washington can help you notify creditors and publish proper notices to help reduce the timeframe by which creditors must make a valid claim on the estate. The last thing you want are beneficiaries receiving debt collection notices months or more than a year after probate was opened because of issues with creditor notification.
- The executor distributes assets and property to beneficiaries and heirs as instructed in the will, or as dictated by intestate law if there is no will.
- Finally, the executor files the Declaration of Completion of Probate. Each beneficiary may be required to sign documents confirming their receipt of assets or property.
The process of administering an estate can involve many moving pieces, and many steps that must be properly completed to avoid issues down the line. You may face additional steps if there are family disputes. If you have any questions about the process, you might want to speak to a family lawyer in Washington state. A family lawyer can help you file appropriate paperwork to open probate, can help you locate assets, take required steps regarding assets, and help you resolve matters involving creditors.
The good news is that you might be able to make a claim against the estate to recover your legal fees (and fees for other professional services). You may even be able to receive reasonable compensation for your services as an executor. A family lawyer can help you navigate this process as well.
What if I Don’t Want to Serve as Executor?
Being an executor can feel like a major responsibility and it’s understandable if you’re overwhelmed. A family lawyer can help you navigate the process, easing your burden during what is likely already a difficult time for you and your family. That said, if you were named executor of a loved one’s will and don’t want to do it, or think you aren’t up for the job, you have the right to resign as executor and another person can either petition to be named executor or another person can be appointed under Washington law, RCW 11.68.060.
What if There’s No Will?
If there is no will Washington’s intestate laws will guide how assets will be distributed (under Washington law, RCW 11.04.015). If the only surviving family member is a spouse or domestic partner, the spouse or domestic partner would typically be entitled to receive the estate’s assets. But if there are surviving children, then the estate must be divided between the surviving spouse and the children. And if there are surviving parents, the estate must be divided between the spouse and the parents. Other family members may also have a claim to the estate, and in these complex situations, it might be wise to speak to a family lawyer.
What is the Simplified Probate Process, and Can I Use It?
If a person passes away with a small estate in Washington (that is, the value of assets subject to probate do not exceed $100,000), the surviving family members might be able to use the “simplified probate” process. The simplified probate process can typically be used when the person who passed away owns no real property (this is because most real property will be valued above $100,000), or where real property is held jointly and doesn’t need to pass through probate. This process is governed by Washington law RCW 11.62.010. You’ll want to read it through carefully. The simplified process is anything but simple!
Property may not need to go through probate if it is considered community property in a marriage, property that is already jointly owned, property managed by a trust, or property for which you are a named beneficiary. If you have questions, you might want to speak to a family lawyer in Washington state to help you understand what property could be subject to probate.
You can use the simplified probate process if
- The person who passed away lived in Washington state.
- 40 days have passed since the person passed away.
- The value of the estate does not exceed $100,000.
- You are entitled to inherit the property.
- All debts and funeral expenses have been paid.
- No one has opened probate in the courts.
- You have notified all other “successors” and given them 10 days to dispute the process or make a claim. This process can be complicated even if there is a will. Successors can include spouses, domestic partners, children, parents, siblings, nieces, nephews, grandparents, aunts, and uncles. If a will omits children, children may still have a claim to the estate under Washington law. If you aren’t sure about how to locate successors or if you have questions about successors, it might be best to speak to a family lawyer in Washington state before you proceed with the simplified process.
In some circumstances you might be able to avoid going to court, but this doesn’t mean that certain formalities must be followed, and requirements met. Debts and taxes must still be paid, and all successors must still be notified.
What Happens if the Will is Contested or if Multiple Successors Make a Claim?
If the will is contested, you may have to go to court. The only people who can contest a will are those who are either listed beneficiaries under a will, or individuals entitled to the estate under intestate laws. Disputes in a will can arise when a person disinherits a child or writes a will that deviates significantly from intestate law without seeking proper legal guidance.
Disputes can also arise if the family believes that a will was signed under fraud or duress, or if the family believes the person wrote the will when they were not of sound mind. Issues can arise if the will wasn’t properly signed, witnessed, and executed. This can include situations where a person wrote their own DIY will, didn’t have witnesses, or used one of the beneficiaries or heirs as witness. If the will is contested, if multiple successors make a claim, or if you anticipate challenges during probate, you may want to speak to a probate lawyer in Washington state before you begin the process.
What Issues Can Make Probate More Complicated?
Certain situations can make probate more complicated. These situations include:
- High net worth estates
- Estates where interest in a business is involved
- Estates where property is owned in multiple states
- Estates that involve complex financial situations
(intellectual property, collectibles, real estate, investments, many debts) - Family disagreement or highly litigious family members
- Situations where the will deviates significantly from intestate laws
- Issues with creditors
- And more.
If you are concerned about the probate process getting complicated, you might want to speak to a family lawyer before you open probate.
How Much Will Probate Cost in Washington State?
The costs of probate will depend on the complexity of your situation. The good news is that executors, their attorneys, and tax professionals can seek compensation from the estate for their services. These fees must be reasonable. Appraising property, filing taxes, notifying creditors, and taking other steps required for probate can cost money and be time consuming.
If you have been named the executor of a loved one’s estate, consider the Washington family law attorneys at Truce Law today. Our attorneys can review your situation and help you navigate the probate process every step of the way. We may even be able to help you recover your attorney’s fees and receive compensation for your services as executor.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.