Probate

The term “probate” refers to the legal process of administering someone’s “estate” after they have passed away.  (“Estate” simply means everything owned by the deceased person.)  In Washington, a probate action is filed in superior court, usually in the County where the deceased person lived.  Although it is possible to initiate a probate action without an attorney, there are strict rules and procedures under Washington law that must be followed.  A non-attorney will be required to know and follow these rules just as strictly as an attorney.  For this reason, it is usually best to hire an attorney to help guide a person through this process.  

If a person left a Last Will and Testament, the original version of this document is filed with the probate court and the court “certifies” this document and admits it into probate (testate).  The term probate is frequently used to refer to the entire process of “probating” an estate. In this usage, it refers to the entire process of gathering all available assets, paying any outstanding debts, taxes, administrative expenses and then finally distributing the remaining assets to those persons or entities entitled to receive them, either by direction of the Will or under the laws of the State of Washington if there was not a Will.

Initiating a probate action creates a legal entity known as “the Estate.”  Typically, a person’s financial assets will be consolidated into an Estate bank account, which is used to pay existing debts before distribution to the appropriate heirs.

If an estate is solvent (assets are greater than debts) a court will typically bestow powers to the Personal Representative to administer and distribute assets of the estate without obtaining prior approval of the court (“non-intervention powers”).  The probate court bestows legal authority to this person to act on behalf of the Estate in consolidating and distributing estate assets.  This is necessary, for example, when the Estate transfers real property either by recording a deed transferring interest in the property to beneficiaries and/or by entering into a contract with a real estate agent to sell real property.

One purpose of the probate court is to resolve any disputes concerning the distribution of Estate assets.  Generally, notice of initiating a probate action must be given to all potential heirs of the Estate, who are given the opportunity to intervene in this process if they feel Estate assets are being improperly handled and/or distributed.  A probate court can also hear contests to the alleged validity of a Last Will and Testament.

Testate

This term refers to a probate when a person has died and left a valid Last Will and Testament specifying their wishes pertaining to the distribution of their assets. In this case, the estate will be distributed according to the provisions of the Will.  A Will designates someone to serve as “Personal Representative” of the Estate and the probate court must officially appoint this person to serve in this capacity.  The probate court will typically grant this person what are called “Letters Testamentary.” This document receives the court’s seal and conveys the official power bestowed on this person to act on behalf of the Estate.

Intestate

This term refers to the probate of a person who has died and did not leave a Last Will and Testament. In this case, the distribution of the assets of the estate will be governed by the laws of the State of Washington, which provide a legal order of beneficiaries entitled to receive the assets of the state.  In this case, the probate court appoints an Estate “Administrator”, who serves in essentially the same capacity as a Personal Representative.  The document conveying powers to act on behalf of the Estate for this person is referred to as “Letters of Administration”.  Typically, in this situation, a spouse or other loved one will initiate the probate action and seek an appointment as Administrator.

Personal Representative / Administrator

The person appointed by the probate court as either Personal Representative (also known as the executor or executrix) or Administrator is legally responsible for handling the orderly administration of the Estate as set forth by Washington state law.  This person holds a “fiduciary” responsibility to the Estate to properly distribute assets and pay debts.  They are typically required to file an “oath” with the court affirming these responsibilities. They are held accountable for their actions and decisions by the heirs and other beneficiaries and in some cases may be formally supervised by the probate court.  This person is responsible for creating an inventory of all estate assets and must be able to account for all assets they consolidate and take into possession of the Estate.

This person is typically entitled to a reasonable fee or commission for their services.

Typically, the Personal Representative/Administrator works closely with an attorney who can ensure that they meet all of the legal requirements of probate.  They may make partial distributions of funds to the Estate heirs so long as enough funds are reserved to cover all debts of the deceased person.  This person is also responsible for ensuring that all IRS tax filings are made on behalf of the deceased and all tax obligations are paid.  Consulting with a professional tax preparer is typically one of the responsibilities of the Personal Representative/Administrator.  Choosing the person who will fulfill these responsibilities is therefore an important decision.

It is sometimes unnecessary to initiate a probate action in court.  This is true if no formal legal powers are required to distribute Estate assets.  There are many avenues which people can take to avoid the necessity of probate—titling real estate into what is referred to as “Transfer on Death” deeds and naming beneficiaries on financial accounts are two common methods of avoiding the need for a probate action in court.  In this case, the Personal Representative will still be responsible for collecting, administering and distributing personal property pursuant to the terms of the deceased’s Will.  In most cases, however, the perception that probate is something extremely difficult and to be avoided at all costs is untrue.  Washington courts have streamlined the process of a probate action and if a Personal Representative is guided by a knowledgeable attorney, the process is usually not onerous.

Even in cases where a formal probate action is not required, Washington law requires that anyone in possession of a deceased person’s original Last Will and Testament file that document in superior court.

Will Contest

In rare cases, an Estate beneficiary may believe that a Last Will and Testament is invalid, either because it was not validly executed or because it was executed by the deceased person under the undue influence of someone else.  In this case, a person may challenge the validity of the Will in superior court.  This type of challenge must be filed within a very short time period—typically four months from when the Will is introduced to the court in probate.  If you have any questions about a Will Contest you should immediately consult with an attorney.