Frequently Asked Questions that Heirs and Personal Representatives often need help answering.
Why is Probate even required?
Typically, a probate is required in order to legally transfer assets. Transferring the legal title/ownership of the decedent’s real property requires the legal authority conveyed upon a Personal Representative or Administrator by the court. Additionally, the holders of financial assets will not release those assets without an appointed representative, given powers by the court, unless the deceased has formally named beneficiaries through the financial institution.
Defending or prosecuting legal claims on behalf of the Estate also requires appointment of a Personal Representative.
Situations that do not require probate usually involve an Estate consisting solely of personal property. In these cases, real property may be transferred because it has been deeded with a beneficiary on the title and/or placed in a trust which has created and named beneficiaries.
How does the Probate process work?
Typically, a Petition is filed in superior court seeking to admit a Last Will and Testament into probate. This Petition seeks appointment of the Personal Representative which is usually the person named in the Will. It also seeks “non-intervention powers” meaning the Personal Representative can act without seeking court approval for every action and seeks issuance of “Letters Testamentary.” If only a copy of a Last Will and Testament exists, there is a process for admitting this document into probate which requires demonstrating that it is an authentic copy of a deceased person’s original Will. If no Will exists (intestate), the Petition opening probate will seek appointment of an Estate Administrator and issuance of “Letters of Administration.” This Petition must usually also establish that the Estate is solvent.
Notice of this Petition is typically required to be given to each potential beneficiary (heir) of the Estate. If a person is named in the Will to serve as Personal Representative, they may be able to open a probate action and receive appointment of the court and then provide notice to beneficiaries. If the person seeking appointment is not appointed in the Will, notice of the Petition is typically required to be given to beneficiaries before appointment, giving those interested individuals an opportunity to appear at a court hearing admitting the Will into probate and appointing the Personal Representative.
Following appointment of the Personal Representative (or Administrator) it is typically required that notice of the probate action be published in a local newspaper, giving creditors notice and opportunity to make claims to the Estate for debts owed by the deceased. If a creditor is known to the Estate, they may also be required to send notice directly to the creditor. If the creditor fails to make a formal claim to the Estate for debts owed, they lose the right to collect these debts after a specified time period.
The Personal Representative will also be required to begin identifying and consolidating all assets of the Estate. This consolidation process usually requires opening a bank account for the Estate and placing all Estate funds into the account. All debts of the Estate should be paid out of this account in order to provide accountability should the actions of the Personal Representative be challenged by other heirs. Once all financial accounts and assets of the deceased are identified and consolidated, the Personal Representative can begin distributing assets to the beneficiaries of the Estate, reserving enough funds to ensure that all debts are paid. If real property is involved, the Personal Representative will be responsible for either selling the property or transferring title to the appropriate heir or heirs.
It is the responsibility of the Personal Representative to safeguard all assets of the Estate, and they may be held personally responsible for a failure to safely and properly secure assets. Included in this obligation is a requirement that the representative maintain proper insurance coverage on assets which protect the assets from theft, damage, etc. during the pendency of the probate proceedings.
The Personal Representative will also work with an attorney to create an “inventory” of the Estate, which is a list of all assets and all debts of the Estate. This document is required to be compiled and kept in the probate files, but it is typically not required to be filed with the court. If a beneficiary requests a copy of the inventory, the representative must be able to produce this document.
The Personal Representative may also be responsible for overseeing any legal claims on behalf of the Estate. This could include claims for monies owed to the Estate or claims for wrongful death on behalf of the deceased.
When all debts have been paid, all necessary tax filing are accomplished, and all the assets of the Estate have been distributed to the appropriate beneficiaries, the probate action can be closed. Typically, this is accomplished by filing a notice of closing with the court which is provided to all beneficiaries. If a beneficiary feels that the probate should not be closed, they have a certain amount of time to bring this concern to the court.
If the value of the Estate is low, is a Probate still necessary?
Not always. Washington state law provides for administration of Estates under a certain dollar value by using a small-estate affidavit procedure. Any time after 40-days following the decedent’s death, someone entitled to receipt of estate assets may use this process to claim property held by someone else. If an attorney determines this process is appropriate, it will avoid the costs and procedures typically required by a formal probate action.
How much does Probate cost?
There is not a set fee or rate for probate services. If the probate appears straightforward and relatively uncomplicated some attorneys may charge a “flat” fee for all probate services, from start to finish. Other attorneys may charge an hourly rate for providing probate services. In this case, the total cost of probate is determined by whether there are complicated issues involved, how organized the Personal Representative is and whether there are issues raised and contested by heirs to the Estate. Like any professional service, it is wise to consult with different attorneys and ask about their rates and fees prior to engaging the service.
How long does the Probate process usually take to complete?
The duration of a probate action is subject to many variables. Generally, it is not unusual for a probate to last approximately six months. However, it can and frequently does take far longer. Some issues that can delay the completion of the process can include: 1) Disputes among beneficiaries, including a Will Contest; 2) Difficulty locating heirs and beneficiaries; 3) Legal claims or liens against the estate that remain unsettled; 4) Real estate or other property that cannot be sold for some reason; 5) Creditor’s claims that arise late in the proceeding or fail to resolve; and/or 6) Legal actions by the Estate that remain outstanding.
An organized Personal Representative, guided by a competent attorney, are crucial to resolving and finishing a probate action.