General Questions About Probate
What is probate?
Probate is the process that transfers legal title of property from the estate of a person who has died (the “decedent”) to his or her beneficiaries. The term “probate” refers to a “proving” of the existence of a valid Will, or determining and “proving” who is one’s legal heirs if there is no Will.
Why is probate necessary?
The primary function of probate is transferring title of the decedent’s property to his heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate. Another function of probate is to provide for the collection of any taxes due by reason of the deceased’s death or on the transfer of his or her property. The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from chasing heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to ones’ rightful heirs.
Do we have to go through probate if there is a Will? Can’t we simply distribute the assets as stated in the Will? ?
Generally, it is necessary to go through probate, or in the case of smaller estates, a less formal procedure, before a decedent’s property can be legally distributed. Even if a person dies with a Will (known as dying “testate”), a court generally has to have an opportunity to allow others to object to the Will, and if there any objections, to determine if the Will is valid. For example, there is the possibility that:
- there was a later Will (which, if valid, would replace the older Will), or
- the Will was made at a time the deceased was not mentally competent to make a Will, or
- the Will was the result of fraud, mistake or “undue influence” or
- the Will was not properly “executed”, or
- the so-called Will is actually a forgery, or
- for some other reason (such as a pre-existing contract) the Will is not fully valid, or there are other claims against the deceased’s estate that impact what the beneficiaries under the Will would receive.
What if there is no Will?
The net estate of a person dying “intestate” (without a Will) shall be distributed pursuant to statute. The law also sets out the order of who will be appointed by the Court as the administrator (personal representative) of the estate if there is no Will.
Who is responsible for handling the probate process?
The Personal Representative (also referred to as the “executor” or executrix” if there is a Will, or the “administrator” if there is no Will) is appointed as part of the probate proceeding and has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.
What are the main duties of the personal representative?
The main responsibilities are as follows:
- determine if there are any probate assets;
- identify, gather, and inventory the assets of the deceased;
- receive payments due the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits);
- set up a checking account for the estate;
- figure out who is going to get what and how much under the Will (if there is no Will, Washington state’s “interstate succession laws” apply);
- value or appraise the estate’s assets;
- give legal notice to potential creditors;
- investigate the validity of all claims against the estate;
- pay funeral bills, outstanding debts, and valid claims;
- pay the expenses of administrating the estate;
- handle various paperwork, such as discontinuing utilities and charge cards, and notifying Social Security, Civil Service, and Veterans Administration of the death;
- file and pay income and estate taxes (if necessary);
- distribute the remaining property in accordance with the instructions provided in the deceased’s Will; and
- close probate.
The bank holding my deceased mother’s Certificate of Deposit (CD) will not distribute the funds to her estate without her Will being probated. Can the bank require my family to go through this process?
If your mother held the CD in her own name only (not in a joint account with right of survivorship), a bank may require you to probate her Will (or at least go through an abbreviated process if qualified under Washington law). Although you may state that the document you bring into the bank is your mother’s actual Will, without a probate process the Will is not “proved.” The bank would risk disbursing funds to someone who may not be entitled as a beneficiary.
My relative left a small estate comprising of an old automobile and a few thousand dollars in a bank account. Do I need to probate the estate?
Perhaps not. Washington has simplified procedures for smaller estates where there is no real estate. However, if the relative left a lot of debts at the time of death, it may be best to go through the regular probate process. You should speak with an attorney to evaluate the best procedure to follow.
Can I handle probate without a lawyer?
While there is no requirement to use a lawyer, probate is a rather formalistic procedure. One minor error, one failure to send a beneficiary a copy of the petition, or a missed deadline, can cause major problems or expose everyone to liability.
Additionally, the death of a family member or friend sometimes brings out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one’s death, particularly when dealing with money or family mementos. Disputes can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus it generally is a very good idea to “let a lawyer do it”.
I was named as the executor in my sister’s will. Do I have to serve?
No. It is your choice to serve or decline to serve. If you choose to serve as Personal Representative you can later resign, although you may have to provide an “accounting” for the period you served. If you decline to serve, or resign after serving, the alternate Executor named in the Will typically is then appointed by the court.
If I serve as an executor, do I get paid?
It will depend upon the provisions found in the decedent’s Will. Certainly, you would be entitled to your out-of-pocket expenses in managing and settling the estate. However, all fees and reimbursed expenses are subject to court approval. Additional fees may be allowed by the court in cases of unusual difficulty or extraordinary circumstances. On the other hand, if a Personal Representative is derelict in duty, the court may reduce or deny compensation, and the Personal Representative may be held responsible for any damages s/he caused.
How long does probate take?
The duration varies with the size and complexity of the estate, the difficulty in locating the beneficiaries who would take under the Will, if there is one, and other complications. If there is a Will contest, or anyone objects to any actions of the Personal Representative, it could take years to resolve a probate procedure.
How much does probate cost?
The cost of probate will depend on several factors, including but not limited to the size and complexity of the estate, whether a bond is required under the Will, and costs to locate beneficiaries. If there is a Will contest or dissention among the beneficiaries, costs could skyrocket.