Probate Q&A Interview with Washington Probate Attorney, Daniel Crowe and Ryan Garrison
What is Probate?
Dan Crowe (00:01)
Probate is the process by which the court exercises some level of control over how an estate is managed. It’s not the big scary kind of bugaboo monster that a lot of people. I think that it is. At least it isn’t in Washington. It is actually pretty terrible in some States, but every state sets its own set of laws for how it handles probating estates, and Washington has got a pretty easy one. But that’s basically it. It’s just the court exercising some oversight over how an estate is administered.
Ryan Garrison (00:33)
The way I’ve always thought about it is it’s essentially settling debts or settling all the people that need to get paid and making sure that they do get paid the way that the law wants them to.
Dan Crowe (00:50)
It is. Yeah. That’s just one part of the process. Probate begins when a personal representative is appointed or an administrator. If the person passed away without a will, if they had a will, we call them the personal representative, though it’s pretty much the same thing as an executor. We use executor in other States, but in Washington, that’s what we say. So it starts with that, and then it’s the responsibility of the personal representative to do an inventory. So that’s part of it is figuring out what the decedent owned, and the personal representative has to figure out what the debts were. So that’s part of it as well. And there’s a handful of ways that we go about doing that. And then once the debts are settled and that doesn’t always necessarily mean paying them. Sometimes you don’t, sometimes you’re not even legitimate debts. But also the next step that you have to take is to distribute the assets of the estate to whomever the heirs are either who the will says or if there’s no will, what the statute says, it’s a distribution as well. Okay.
Ryan Garrison (01:52)
Where does the process, the probate process occur?
Dan Crowe (01:58)
Not sure I understand that question entirely.
Ryan Garrison (02:01)
So now today, 2022, is there still a lot of court stuff online for probate? You’re going to have the probate clerks, the people are going to have to go down or the lawyers need to go down to the courthouse.
Dan Crowe (02:13)
It depends a little bit on where you are because every county kind of does things the way its own special way. Most of the probates that we’re filing, no matter where the disease lives and no matter where their property was. And it doesn’t matter. We’re filing as many as we can in Pierce County right now because it doesn’t matter what county you file in. If you’re in Washington, if the person passed away in Washington and they have a property in Washington, you can file probate in any county you want. It could be in Eastern Washington. It doesn’t matter. The reason that we file that I prefer to file in Pierce County is that they have an online filing system that is by far the best in the state. It’s called Links, and it’s just amazing. It does everything and it does it all easily, which makes me happy since I could do almost all of my filing from the comfort of my desk at work and I don’t have to actually drive to the courthouse. But also, too, because the process for getting orders signed and getting stuff in front of a judge in Pierce County is easier as well.
Dan Crowe (03:12)
It’s one of those counties where you got a large population because you’ve got Tacoma. Of course, it’s not so large that it’s Seattle and everything is bogged down and impossible and behind and everything else. But it’s a big enough county that it’s had to develop some really efficient processes for getting this stuff taken care of. So I guess the bottom line is probates take place in courts, but whether it’s online or not, it depends on where you are. And Thurston County is just fine as well. But I like Pearson a little better. Okay.
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Ryan Garrison (03:43)
In Thurston County, do you have to go into the probate clerk in person in Thurston to file probate?
Dan Crowe (03:48)
Well, it’s changing right now. It’s always been, I shouldn’t say always for the last couple of years, which has been a little bit of an anomaly. You do almost everything via Zoom and you can get exported orders and things signed that way. I think you can still do that for probates. You do, in all cases have to file the original of the will. So there’s a little difference in how we get that stuff taken care of. And now there’s a specific time in Thurston County where you can actually go in and get it taken care of as well.
Ryan Garrison (04:19)
Do I need to file probate if there is a will?
Dan Crowe (04:27)
Not necessarily. Probates do not have to be filed in every single case, whether there’s a will or not. And it doesn’t hold on. My dog is sitting on my feet. Sorry, it doesn’t matter. He’s a big dog. He’s squishing my feet. It doesn’t matter necessarily whether there was a will or not. We file probates in both cases. So there are situations where we don’t have to file probates. Actually, we never have to, but the situations where we generally don’t, if it’s an estate worth less than $100,000, we’ve got a special process in Washington, we call it a small estate affidavit. That’s usually not an estate that contains real estate. So for your investors and people, it would have to be a piece of real estate worth under 100 grand, which is kind of hard to find. Maybe a crummy open lot somewhere if one of a spouse has died. So you pass away, your wife is still alive, and everything is going to go to your wife under your will. There are ways that we can take care of that without worrying about doing a probate one of the things is an estate planning attorney, I can tell you is that you need to have a community property agreement.
Dan Crowe (05:40)
That’s just an agreement between the husband and the wife that says all of our stuff is community property. And on the first of us to pass away, the other one just gets all the stuff that lets you transfer title to just about everything. You’re going to want to record it with the county, take it to do well for vehicles, things like that, along with some other paperwork. But you don’t have to do probate in those cases.
Ryan Garrison (05:59)
What if there is a no community property agreement? Do they have to go probate in that circumstance or what happened?
Dan Crowe (06:06)
No. So what we’ll do in a circumstance like that, especially if there’s a will that says the spouse gets everything, and frankly, most Wills do. I mean, most of the time when you have a husband and wife on the first of them to pass, they want the other one to get whatever the entirety of the estate is. It would be kind of strange if it wasn’t. That happens, too. There is a process called a lack of probate affidavit that’s for properties or for estates that are worth more than $100,000. So you don’t have to do the small estate affidavit. And for some reason, there’s a good reason to not bother with probating the estate. There are some notice requirements or some things like that. It’s a little more complicated, but it’s not as bad as probate. Estates that we’re probating are estates that are either high-value estates, multiple heirs, some sort of strange distribution scheme that the disease has come up with because they come up with all kinds of ways that they’re going to give their stuff away. It’s just designed to cause strife in conflict. So if you got one of those and you can see it coming anytime, when you can see conflict coming, what are some of the good reasons?
Dan Crowe (07:15)
Real estate, though, is a big one, because if there’s real estate, you don’t have to do the probate necessarily. There’s no law that says you have to do it. But I spend as both a real estate attorney and a probate attorney, I spend a lot of my time making banks and title companies happy. They’re harder to make happy than judges. Judges don’t care as long as the law is on your side. If you can walk into a courtroom and say, here’s a piece of paper, your honor, and it has RCW eleven, blah, blah, blah on it that says, whatever about how we’re going to deal with this will, the judge will say, okay, fine, do that. You walk into a title company and you say, look, I have a statute right here that says that I can do this to transfer title. A lot of them will say, well, yeah, that’s what the statute says. But our legal Department back in Cincinnati or wherever it is, says something different. So we’re going to do what that says instead of what the law says. And what are you going to do? You’ll see some big national title company.
Dan Crowe (08:07)
So if you probate, you can always get away with it. Also, you never have to worry about a quiet title action again, because remember, the probate is the judge overlooking things with the judge will sign off and stamp that everything was done. And if some title company three or four transactions down the road 100 years from now, since we don’t like the way that they did this Crow did this back in 2022, whoever the attorney is then isn’t going to have to go file a quiet title action, which I file those all the time. When people screw these things up, when somebody dies, I end up suing people who are dead because the transaction happened 75 years ago. But they screwed it up because they did it wrong and they didn’t probate and they forgot to file a deed or whatever happened and that those are a nightmare. And they’re going to slow up your closing. A lot people.
Ryan Garrison (09:05)
When they purchased 75 years ago, did they ever fight you when you sue them?
Dan Crowe (09:09)
No, because they were dead, actually. What happened is there’s a Civil service Members Relief Act, the Soldiers and Sellers Relief Act, the old one. There’s an act that says if you are going to sue somebody who’s active-duty military, and if they are deployed somewhere else, you can’t take a default judgment against them, which makes complete sense, because if I Sue somebody soldier and he’s in Afghanistan, and I expect them to respond in 20 days and give me an answer and get it filed with the court, that’s ridiculous. That’s not fair. It’s not what you want. So what you have to do when you go to take a default judgment against somebody is give the court a certificate from defense Manpower that says, I’ve searched this guy’s, not in the military. The records don’t go back 75 years.
Ryan Garrison (09:55)
Dan Crowe (09:56)
On that particular one, I went in and I got a Commissioner who is a very good Commissioner, but he’s a little particular. He’s very much a stickler for the rules. And he said, I’m not going to sign your default because you don’t have a state of defense manpower saying that the defendants aren’t in the army. And I said, but Your honor, they’re dead. People don’t get to be in the army. There’s a rule, I’m sure there’s got to be a rule somewhere that says got to be. So we’re not enlisting the dead. And he said, I don’t care, I need the certificate. So it was a nightmare. It took me like three days to get that thing entered. I was so frustrated. Commissioner wanted me to prove there’s no zombie army.
Ryan Garrison (10:34)
If someone had passed, how do I find out if I’m named in a will?
Dan Crowe (10:49)
How do you find out if you’re named in a will? Well, that can be tough. But first of all, did they pass away? And was there a good reason that you would have been named in the will? Were you their child? Were you their spouse? I mean, hopefully if it’s your spouse, you don’t know what their will says. Was your grandma and grandpa. Who are these people? How are they related to you? And then you’re going to want to go figure out if you can find the will. So start calling around your relatives, whoever you think they might have named as their executors. Those people are required to tell you if you’re named in the will, there’s notice requirements. So if I’m my mom’s PR and I look at it and it’s my brother and sister and I don’t know whoever else that she named in the will, I’m the PR. I now have an obligation to tell everybody, hey, you’re named in the will and you’re named by the way, here’s a copy of the will. I have to give them a copy when I open up probate, I’m required to show the court that I’ve given notice to everybody who’s an interested party.
Dan Crowe (11:47)
That’s how you find out. It’s also possible that sometimes people just sort of don’t do what the law says. So that’s where you run into problems when they don’t bother to notify you. But if you’re named, if it’s being probated, you better be notified the judge is going to look for that.
Ryan Garrison (12:05)
Who are the heirs, if there’s no will or trust?
Dan Crowe (12:09)
Okay, yeah. So if there’s no will or trust, you are said to have died and tested, meaning you don’t have a last will and testament. If, by the way, you have a trust and you’re going to administer these state through the trust, you still need a will. You do what we call a poor overall, which basically just says take all of my stuff and pour it over into the trust because people forget to put stuff into their trust. But if you don’t have anything, if you just never bothered to get an estate plan put together and you pass away, we look at what the RCW says because Washington State has a will for you. The RCW that we’re looking at here is eleven 0415, and it’s basically like a flow chart, only without the handy little boxes and arrows and lines that make it make flow charts make sense. It’s all just written out. So you kind of have to sort of read it about 20 times to scratch your head and think about it and maybe draw your own flow chart. The first thing we do when somebody passes away is we look to see whether they had a spouse, if they had a spouse, all of the community property goes to the spouse if they had any separate property other than what was in the community, then that separate property could split 50 50 between the spouse and any living children goes down and you look for the other heirs.
Dan Crowe (13:22)
If they did not have a spouse, then obviously community property is not an issue. But if they didn’t have a spouse, the next people we look to or whether they had any living children, if any children predeceased, you, then, unfortunately, they’re out. Or their heirs would be out. If they don’t have any living children. And by the way, every living child would get an equal share of whatever is in the estate. If they don’t have any children, we think I think we go look for their parents next, and then we look for brothers and sisters. And then I think we look for grandparents, aunts and uncles, cousins. Anyway, there’s this whole like, we’re doing your Ancestry.com, trying to figure out who it is. Eventually, if you were really the absolute last of your line and there is nobody that we can link this thing to. It goes through a process called S cheat. E-S-C-H-E-A-T-S cheat. And that basically takes the property and gives it to the state, which we don’t want because we don’t like giving things to the state. They get enough of my things, most of my money. And so we try to avoid that if at all possible.
Dan Crowe (14:26)
I mean, the thing about that is we usually wouldn’t even come to me because who’s going to bring this case to me and say, I’m not an heir? I don’t think this guy had any heirs. Let’s give the property to the state. It’s not something that I deal with. Usually I’m trying to figure out. It’s like these quiet title actions where I’m trying to figure out who everybody’s heir was so I can find somebody that I can give notice of this stupid lawsuit to so that I can just get the title cleared up.
Ryan Garrison (14:51)
How many times do you run into that where you have a real hard time finding heirs that you need to do the estate?
Dan Crowe (15:05)
It happens fairly commonly. It’s usually not that we can’t find any heirs. It’s that we can’t find one of the heirs. Okay. Someone will come in and they’ll say, look, I had my brother and I had a sister, and there’s me and my sister and I are really close, but we haven’t seen our brother in 20 years. And either the will says split it between the three kids or the will doesn’t exist. And we have to go by what the statute says. And then I’ve got to go do a manhunt and see if I can find his brother who’s been in the wind for 25 years or whatever. I said a long time. What’s that?
Ryan Garrison (15:45)
On the quiet title – do you have to do an announcement in the paper or do hire private investigators?
Dan Crowe (15:50)
So we’ve got some resources. There are private investigators also. My service of process people that I use. I’ve got a company that’s really good, that I like to use to serve lawsuits and things. They can do a pretty good job. Skip tracing somebody. My paralegal is Dynamite, man. She will literally dig into Ancestry.com to see if she can find somebody Facebook, see if we can track them on social media. All we’re trying to do is just contact them and say, hey, we’ve got some money for you. You may want to contact us. If we really cannot find them, I can ask the court to let me publish a notice. Okay, okay. But that never works. That’s just constructive notice. Nobody ever responds to legal notices in the newspaper.
Ryan Garrison (16:34)
Yeah, I didn’t even know they made papers.
Dan Crowe (16:36)
Still, they do. Very exciting. Yes, you should look in the business or not in the business, but look in the back page of the squaly Valley news or somewhere someday, and you’ll see how famous I am. My name is all over it for publishing notices. Part of the process of the probate itself is to publish a notice to creditors that says if you don’t show up in core months, then you don’t ever get to show up. And we have to publish that in the newspaper. So I stick them in the NBN not because I live in Yelp or work in Yelp, but because it’s the cheapest newspaper in Thurston County. I think we use the business examiner in Pierce County. It has to be in the county where the probates from. So I think we’re using the business examiner up in Pierce County, because for the same reason. Okay, it’s not that anyone is going to read it. How do I get out of this as cheap as possible?
Ryan Garrison (17:23)
So let’s say someone dies and I am in arrow. I’m getting an inheritance. When do I get it? When can I get my inheritance?
Dan Crowe (17:31)
So that depends a little bit part of my coffee. So if we’re going to be probating the estate the second that the court names the personal representative or appoints the personal representative, then we’ll go to the clerk’s office, and the clerk will issue what we call letters. Testamentary letters. Testamentary are just the official letter from the court. It’s got a fancy little seal on it and a stamp and all that kind of stuff that says that you, as the personal representative, have now stepped into the shoes of the deceased, and you can do anything that they can do. That includes distributions. So a lot of times we do pretty early distributions when we feel like we really know exactly what the asset situation and the debt situation of the decedent was. We still have to publish that notice to creditors and wait four months. But we can distribute right away. You just want to be very careful, because if you distribute right away and all of a sudden some credit card with $10,000 balance on it pops up. You’re going to be going to the air and asking them to give some money back. I’ve never had to do that, thankfully.
Dan Crowe (18:33)
But that’s a nightmare that I can think of like a partial distribution will hold a little back just to make sure. And oftentimes the person who’s the decedent has been having the personal representative care for them for a long time. So the personal representative is usually one of their kids or somebody. And that kid will be able to say, yeah, I took care of mom’s books for the last three years because she couldn’t pay her own bills. I just was helping her or I had her power of attorney or whatever. So I know what all our bills are. This is what she owes. We just pay those off right now and take care of it and we’re good to go. Then you can distribute right away. If there’s real estate, you can sell the real estate immediately and then take the money and put it into an account for the estate. Okay.
Ryan Garrison (19:16)
If I’m the executor administrator of the estate, what can I reasonably pay myself to be the executor of the estate?
Dan Crowe (19:28)
You’re not going to want to pay yourself a lot. You’re basically going to end up with sort of going rate for what somebody like that does. You have to track all of your hours. You do it on an hourly rate. Or I guess presumably you could try to do some kind of a flat rate, I don’t know. But you’re going to want to probably sit down with a bookkeeper or somebody or an accountant. What’s the amount? Maybe it’s $20 an hour. It’s not going to be a huge amount. I don’t get to sort of set huge rates for people that might want it because what you don’t want to have happen is you don’t want to have it look like you’re acting outside of your fiduciary duty to the heirs, the only heir to the estate like you’re an only child and your mom and dad passed away or something. And you’re going to get the entire estate mother paying yourself because why would you do that? You’re going to get the whole thing anyway. It’s just more math. Maybe even you may even have to pay more taxes. Taxes on that. If it’s income instead of an inheritance, I think you got to pay taxes on it.
Dan Crowe (20:24)
So that’s problematic. You don’t pay taxes on an inheritance. At least you don’t pay income tax on an inheritance. It’s not income tax. It’s not subject to gift tax because it’s not a gift. Your capital gains resets. It’s called a step up in basis and capital gains. But if you take income, then you’re going to have to pay income tax on it, just like you do any other income that you make. But you do have the right to get paid, especially if there’s multiple heirs. You have the right to get paid for the workfeed.
Ryan Garrison (20:54)
Yeah, I’ve at least heard of it. I haven’t seen it in practice where they’ve gone on a percentage of the total estate value or things like that, it’s not uncommon.
Dan Crowe (21:04)
Usually an hourly rate is better just as far as the court is concerned. Like I said, what you don’t want to have happen is the other heirs go into court and say, hey, Ryan had a fiduciary responsibility. You had a special responsibility to us, which you do as a person representative, to safeguard the funds and to not waste the funds and to take care of them and keep them separate accounts and all of that. And instead, what he did was he pocketed this ridiculous amount of money for himself, and then it diluted all of our portions of the estate. Now, we don’t have anything because of him. So if you can go in and say no, you’re under. Look, here’s what I did. I tracked all my hours. Here’s a list of all the things that I did, the amount of time that I spent dump runs, and I did a garage sale or something silly like that. And I only charge this much per hour just because I felt like I needed to be compensated because I was missing out from work and et cetera, et cetera, then that’s a much more reasonable way to approach it.
Ryan Garrison (22:01)
Okay, so this one is actually something I’m dealing with right now. I have a seller in rural Pierce County that the deceased had several pieces of real estate. They’ve all been liquidated except the one. So all the debtors have been paid. There’s plenty of proceeds for that.
Dan Crowe (22:19)
Ryan Garrison (22:19)
The attorney is telling them they have to, and it’s just two people, two heirs. They have to sell this piece of property. Now, my understanding is they should be able to just close the probate and inherit the property and have titles with both their names. But the attorney they’ve been talking to says they have to sell it. Now, can you maybe explain if that sounds right, or if there’s something, maybe that’s kind of fishy or what’s going on?
Dan Crowe (22:42)
Well, first of all, I’m not going to second guess another attorney because we don’t have anywhere near the information that we need to come to that kind of conclusion. So I don’t like it when other attorneys second-guess me. I don’t do it to them. There may be some other debt. There may be some other reason why the property needs to be sold. For all I know, the will ordered it. I’ve seen will do that. The kids to get the real estate because they’ll screw it up because they’re a bunch of screwballs. Sell it all and split the money with it so they can’t park rotten cars and Cook meth on the property or something.
Ryan Garrison (23:13)
I could see that I didn’t think of that one. I could see that one.
Dan Crowe (23:16)
Yeah. It’s a possibility that that’s in there, but we’re just speculating. I have no idea why. There’s no statute that says that you have to sell real estate, and it’s very common for the heirs of the property to inherit the real estate. We do what we call a personal representative deed. You have to do that while the estate is open. By the way, you can’t close it and then have them inherit.
Dan Crowe (23:43)
You have to get everything done before you close the estate. So that includes deeding the property. But you can deed it to two of the heirs. You can delete it to one of the heirs. Oftentimes we’ll have one heir that wants a piece of property, and the value of that piece of the property exceeds the value of their inheritance. So that may be what’s going on here, too. And in those cases, that particular area is going to have to come up with a portion equivalent to whatever exceeds the value of their inheritance, if that makes sense. Okay. So say you’ve got two heirs and you get a piece of property worth $300,000, and the rest of the estate is worth $100,000. So each heir is entitled $200,000 worth of either cash or assets. Does that make sense? But one heir says, I want mom and dad’s house. I got to have it. It’s very important for me to have this house. So what you do is you say, okay, fine, but the house is worth 300,000 and your siblings should be getting 200,000. So we’ll give the 100,000 in cash to the sibling. You have to come up with a loan for $100,000 or something so that you can give that to your sibling.
Dan Crowe (24:53)
So she got $200,000, you got $200,000 worth of property plus $100,000 debt. It all evens out. We can do that. Then if the heir can’t go do that and they just don’t qualify for a loan, although really the loan to value ratio, and that’s pretty good. In that particular scenario, you ought to be able to get a loan for 33% of the value of the house is completely paid off. But if that’s the case, then we have to sell the house because if you can’t get the loan, you can’t do the math. Sometimes there’s big mortgages on property and you have to sell. I don’t know what’s going on, particularly in the case you’re talking about, for sure potential reasons. But we often do deed property over to the heirs rather than giving them cash.
Ryan Garrison (25:47)
Do you ever facilitate a purchase where the debt is subject to the purchase in that the deceased was the mortgage holder and the person buying the property ends up taking over payments on that as part of the purchase and the property is deeded to the purchaser?
Dan Crowe (26:06)
Yes, I think I know what you’re saying. So, for example, mom has a house with a mortgage on it. She passes away, kid inherits the property and then just keeps paying off the mortgage. Yeah, we do. That all you did. That’s no big deal. You don’t even have to really do an assignment. So all you have to do as far as banks are concerned, banks want cash, banks don’t want real estate. They don’t like that too much work. They’re not equipped to handle it. So as long as somebody keeps making the payments, they don’t care. They just keep making the payments. If you stop making the payments, there’s nothing stopping them from foreclosing on the property. So they still have all their rights. And there’s a law that basically says that you can’t call the note if title to the property changes through an inheritance. Same thing with a divorce. So Mum was the one that was obligated. There was a deed of trust. And every deed of trust I think I’ve ever seen has an alienation clause that says if you change title to this piece of property without our permission, without an assignment, then we’re calling the note.
Dan Crowe (27:05)
You have to pay the whole thing off right now. So that’s what happens when you sell a piece of property. The bank gets paid off in full and whatever the proceeds are. And that’s how it goes. In this case, though, if you inherit the property, the bank can’t use that clause. They have to let you keep paying the mortgage off. And like I said, it’s the same way with divorce is if one spouse gets a piece of real estate in the divorce, the bank can’t come in and say, well, you took your husband’s name off of that. So we want the whole thing paid right now. That doesn’t happen.
Ryan Garrison (27:34)
Two things. Is that the Garn St. Germain act, is that part of that or is it a different law with the inheritance?
Dan Crowe (27:41)
I think it’s a different one. I’d have to look up the I don’t have the exact statute. We rarely have to cite to it at all.
Ryan Garrison (27:48)
Garn St. Germain is one that investors will sometimes use regarding trusts. So when you put the property into a trust, state planning trust, that kind of thing.
Dan Crowe (27:56)
Yeah. No, but there is actually. It’s the same thing. If you’re putting property from your personal name into a trust where you’re the beneficiary of the trust and the bank doesn’t call the note, then either.
Ryan Garrison (28:11)
The other thing I would say to this, too, though, just to clarify, the bank, their alienation clause says that they may call the note due.
Dan Crowe (28:22)
Ryan Garrison (28:23)
They very, very rarely would from the friends of thousands of loans that I’ve seen purchases done subject to the existing debt. I’ve only seen it happen very small percentage of the time and only usually with a small regional bank. So just to clarify, big banks just want their money.
Dan Crowe (28:45)
I agree. I may have seen it happen more often than you because I see that just because of my job. I see when things go nuclear, things were already an absolute disaster by the time they get to me a lot of the time. So I see the sort of worst-case scenarios. You’re right. All regional banks and credit unions can be a real nightmare for that sort of thing. The big banks, the Chase banks, and the Wells Fargo, if they’re getting paid, they don’t care. All they want is your money. So give them the money, and pay the mortgage. As a practical matter, even though they could, they won’t. Right?
Ryan Garrison (29:26)
So if there’s no will, what happens to the house? Who decides? How does that go down and how long does it take?
Dan Crowe (29:38)
Usually. All right, if there’s no will, then like I said, you look to the statute. Eleven four, one five. To determine who the heirs are. Usually the way that it comes to me is one of the heirs comes in and says, I’ve talked to my brothers and sisters. We’re the heirs, I guess so. One of us has to be the personal representative, and we have them sign what are called declamations. A declamation is where they’re saying, I declined to be appointed as the administrator because it’s administrator, not personal representative when it’s intested. So I declined to be appointed as the administrator. And I want you to appoint my brother Joe as the administrator, and all the siblings sign that. And then I go into court, and it’s basically the same process. There’s a couple of extra steps that we have to take to get them appointed as the administrator. And the court will usually require us to post a bond, which is not a big deal. They’re easy to get. Other than that, it’s pretty much the same thing. Once you’re appointed as the administrator, you have full control over the estate. So then brother Joe, in this case, the hypothetical I just gave can sell the house, deed the house, pay the debts, deal with the cars and the trucks and the tractors and whatever he’s got to deal with, he can deal with those exactly as if he was the personal representative.
Ryan Garrison (30:57)
What are the executor’s or Personal Representative’s duties?
Dan Crowe (31:05)
Duty number one. First of all, they have overarchingly or overall, they have a fiduciary responsibility to the heirs of the estate. Fiduciary responsibility is a heightened level of responsibility that you’ve got to somebody other than just what your normal responsibility might be. You have an obligation to protect their finances, to not waste the state’s assets, to act in their best interests, even potentially over your own best interest. So that’s that. But duty number one, they have to actually do an inventory. And inventory is just where they just gather together. Whatever the assets of the estate are, they want to give vehicles. There are houses, there’s jewelry, there’s a helicopter, Polo, ponies, whatever there is in that estate. They sort of make a list of all of that, including all the bank statements, what cash was in the bank accounts or money market accounts or whatever. They do that, then they have to provide that to all the other heirs as well. So they have to keep them notified. They’re going to have a duty to publish that notice to creditors that we talked about in the newspaper. They’re going to have a duty to deal with the debts of the estate, either by accepting the debt.
Dan Crowe (32:14)
You look at the debt and say, yes, that looks like Mom’s debt. I’ll pay for that. Or by not you can decline a creditor’s notice. So the creditor gives you notice and says, your mom owed me $10,000. And you say, no, she didn’t get lost. Now it’s back in the creditor’s shoes in the creditor’s side of the court. At that point, they can sue you, but they could sue the estate. So you want to be careful about doing that, because you don’t want to end up in litigation because that’s very expensive. And that’s when heirsshow up and say, why are we litigating this? You could pay the $10,000, and we wouldn’t have spent $20,000 in Attorney’s fees. That’s a decision that you have taken. That’s the responsibility. Then. The responsibility is to divide up the estate the way that the will says it should be divided up or if it’s intested the way the statute says. So the first thing you do is you look for specific requests, which is a specific thing to a specific person. I want my watch to go to my son Frank, and I want the family Bible to go to my niece, who is a pastor at our Church.
Dan Crowe (33:16)
And I want whatever to the hot Rod that I built with this guy to go to him those specific things to specific people. So you start by handing all of that out. Then you deal with all the remainder of the tangible assets. So personal property assets. Personal property is everything that’s not real estate and stuff attached to real estate, like houses and trees and fences. Tangible just means you can touch it. So a piece of tangible personal properties, like my reading glasses right here, I can touch them. They’re not real estate. Real estate is certainly tangible, but it’s in a different category. So you divide all that stuff up, you pay it. I’m not sure you sell it or whatever. Quite honestly, with most of your stuff, it’ll probably wind up in a dumpster. Most people’s stuff isn’t worth anything. There might be jewelry, there might be that kind of thing. But your sofa is not worth anything. Your collection of plates that you’ve got into covered each food off of every night. That’s not worth anything. They really are worthless. Yeah, we don’t even usually put those in the inventory. We’ll say something like personal effects value to $25 or something like that.
Dan Crowe (34:23)
But once the tangible personal property is dealt with, either sold or handed out to the heirs. If that’s what you want to do, then you deal with the residual estate, which is everything else. Everything by this point should be cash. There might be some real estate in there still, if somebody wants the real estate, but then you look at that stuff and you sort of divide it out. That’s also the pot that you pay taxes out of. If you owe any taxes, most estates don’t owe any taxes. Probating in the state is passing away is sort of a great tax advantage, as morbid as that sounds. It really is. We’ve already said that an inheritance is not income, so there’s no income tax and inheritance is not gift. So there’s no gift tax, although there’s a lifetime exemption for gift tax, it’s actually quite huge. And most people don’t come here hitting that with their estates. There’s a step up in basis for capital gains. So whatever your basis was for capital gains, you bought 100,000 shares, $100,000 worth of shares of Microsoft, and that’s 100,000. And now it’s worth 200,000 because it doubled in value.
Dan Crowe (35:27)
Your capital gain would be $100,000, right? That’s what you pay capital gains on. Is that 100,000? Not on the whole $200,000, because that’s what your basis is. When you pass away, that basis steps up to $200,000. So now your basis, instead of being 100,000, is 200. And the entire $100,000 capital gains just got erased. Your heirs inherit those shares, they sell them. There’s no capital gains tax like it would have been if you sold them. If they decide, well, that was a pretty good investment. They hang on to them and now it’s worth 300,000. They sell, and there’s $100,000 capital gain, but that’s after they inherited it. But the same thing if you transfer a piece of real estate to somebody as an inheritance, there’s no excise tax because it’s excise tax-free. I mean, really, from a tax standpoint, federally, the estate tax, I think right now it’s at $11.7 million each. So if you have a spouse that makes it $23 million, and at the state level, it’s somewhere in the $2.2 million range. It’s tied to inflation here. At the state level, you just stuck with it. At the inflation rate, it’s not at the federal level.
Dan Crowe (36:38)
There’s a lot of us who expect it to come down to its historic levels, but it’s still not going to come down to an amount that’s going to really have any kind of significant effect on most people. If you’re paying the state tax, you got enough money, you’re doing all right.
Ryan Garrison (36:56)
So you touched on the personal items, that kind of thing. So at what point in the process, I run into a lot of people that are having estate sales. I know people in the estate sale industry and that kind of thing. The family never gets near what they think they’re going to get because the estate sell companies generally keep half of whatever the revenues generated something along that line. Have the PR’s been named, the letters of testamentary, they’ve already been issued at that point when they start selling stuff and going through the estate sale process and that kind of thing is that pretty much the time you get.
Dan Crowe (37:31)
Okay, yeah. Because you don’t have the authority to sell anything or give anything away until you are the personal representative of the estate. It would be like me coming over to your house and giving away your sofa to somebody like that’s. Against the rules. I’ve never seen your sofa. Maybe I want to give you. I don’t know, but it really is against the rules to give away other people’s stuff. Once you’re the personal representative, though, you are, in essence, legally that person. So then you can give away the personal stuff. It’s very common. When somebody passes away, the family kind of goes in like a bunch of buzzards and just sort of cleans out the house. That happens unless there’s something of any real value. There’s not a whole lot that I tell people to do about that. It’s like Grandma died and somebody got greedy and took everything you could think about it.
Ryan Garrison (38:23)
Well, I’m always seeing the same thing repeat itself is that the family thinks they’re going to be able to go through the house and everything, maybe in a weekend. Right. And they start opening boxes, they start looking at pictures, they start getting into seeing the mom had this room completely full of up to the in magazines or whatever. Elderly folk tend to start collecting things. Right?
Dan Crowe (38:51)
Yeah, that’s true.
Ryan Garrison (38:52)
The clean out process ends up being way more of a task than the family were expecting. And the PR, who was probably the most responsible child, a lot of times now they’re like, oh, my God, what am I getting myself into?
Dan Crowe (39:06)
It can be very overwhelming. That’s all I can say about that. You’re right. We get flat-out order situations where the kids go in and they just get the biggest dumpster that Lemay will deliver to them. They get one of those big, giant truck size, like, semi size dumpsters and they just throw the whole thing up two or three times. I just haul all that stuff out of there. It almost never has any value. You’re right. Estate sale. The estate sale. People will take a large percentage, but at least you’re getting something for the stuff. But even if you sell it yourself, it’s never worth what you think. People will come in and say, Well, Mum was an artist, she was a beautiful paintings. And so we should sell these paintings. They’re probably worth a lot of money. No, they’re not. I mean, your mom was probably a great artist. I’m not being insulting, but her paintings are worthless. Unless she was selling them before she passed away and she was making a lot of money. There’s some sort of basis for us to decide that these things have value and they don’t. It’s to the point in my life doing this where my wife and I are driving down the road and we’ll see one of those houses will be out in the country.
Dan Crowe (40:13)
We’ll see one of those houses where there’s like 200 just rotten cars rotting into the ground and there’s all these Conic containers stacked in the back. And we don’t think, well, how could somebody live like that? We go, that guy’s poor kids, he’s going to die, and they’re going to have to deal with all of that stuff. And probably Pierce County is going to be landing on them with both feet saying there’s oil leaking into the ground and you’re creating those poor, poor kids. They never deserve this.
Ryan Garrison (40:45)
An investor friend of mine says a lot of times the family will ask him, So what’s mother’s piano worth? Right. And then say, well, I don’t know what hers is worth, but I know there are five free ones on Craigslist right now. Yeah.
Dan Crowe (41:00)
Piano heavy. Nobody wants a piano super heavy into your house. If you want a piano.
Ryan Garrison (41:06)
Do I have to live in the same state as the Probate if I’m the executor?
Dan Crowe (41:17)
No, you do not. But if you live in Washington, that’s fine. You can be the executor. If you don’t live in Washington, you can still be the executor. But you need to name a representative because if somebody wants to sue the estate or notices need to come to the estate, they need to come to whoever that person is and not you somewhere else. Okay. Yeah, just a local agent. So I am the local agent for a lot of people. If I’m running the probate and they’re in some other state, I’m usually the local agent, because if somebody is going to sue the estate, I need to know about it very quickly.
Ryan Garrison (41:54)
What is probate litigation?
Dan Crowe (41:59)
So there’s a couple of ways that you wind up in litigation and probate. One is through Tedra. The other, well, there’s a handful of ways, I guess, but the other is basic will contest, which is a different statute altogether, Tedra, is the Trust and Estate Dispute Resolution Act. And that covers all kinds of things. It’s basically a set of procedures that allow us to deal with disputes within a probate. That’s the most common thing to do. Will contest is under a different one. That’s where you’re saying the person who died was incapacitated because they had dementia or somebody’s pointing a gun at them or somehow creating a situation where there was duress or a threat and they were scared and they signed the will because they were afraid that they were old and frail and someone was going to hurt them. The most common I think we see on that is dementia. Mom was so completely demented, she thought it was 1956 and she was getting married to dad next weekend, but she signed this will that suspiciously gave all of the assets to one of the kids who had her signed the will and cut out all the other kids.
Dan Crowe (43:04)
The situation that there’s a separate statute. Otherwise you’re going under Tedra, and that could be anything from a creditor suing the estate because they’re not getting paid. It could be heirs suing the estate because they feel like they’re not getting adequately compensated for their portion of the estate itself. So they’re not getting their inheritance. It could be. I mean, there’s any number of things that fall under Tedra.
Ryan Garrison (43:27)
Is Tedra where the executor themselves, PR, can be sued directly, personally liable?
Dan Crowe (43:35)
So there’s usually very little personal liability for the personal representative except for things that you have done. So if you haven’t acted as a fiduciary, if you’ve pocketed money from the estate, you say this bank account only had $50,000 in it and they had 150 went mysteriously missing. And now you’ve got a $50,000 car. If there are situations where you’ve personally done something, you’re going to be personally liable for that. The other thing I just remember, since we’re talking about personal liability is none of the heirs are ever personally liable for the debts of the estate unless they specifically done something to make themselves personally liable, like if they co signed on the loan for mom or dad. We get this all the time. Collections agencies. My mom said not to say something about someone if you can’t say something nice. So collection agencies, they’ll call the heirs and they’ll say, well, your mom owed us $5,000. Now you owe us $5,000 because of her heir. That’s not true. Flat out lie. It happens all the time. I had somebody when my father passed away, I had a collections agency on a loan that my father had cosigned on for somebody else who said, well, you’re a junior and he was a senior.
Dan Crowe (44:47)
You guys have the same name? And I said, yeah, I’m his son. They said, well, because you guys have the same name and you’re a son, you have to pay his debt. And very few times I don’t pull the lawyer card because I think that’s arrogant. But it’s one of the very few times I said, do you know who I am? Do you know what I do for a living? How dare you? How dare you tell me that?
Ryan Garrison (45:08)
Let me hit record.
Dan Crowe (45:09)
Ryan Garrison (45:09)
Say that again.
Dan Crowe (45:15)
Oh, my gosh. Yeah. I couldn’t believe it. I was just shocked. I was like, did you just say that? But yeah, you’re not responsible for those debts. Whoever buys the house is not responsible for those debts. And that’s why sometimes we tell collections agencies or we tell creditors to just get lost. You’re not getting paid. Go away. Get lost.
Ryan Garrison (45:39)
When do collection companies cross the line to harassment when pursuing a deceased person’s debt?
Dan Crowe (45:43)
Well, it’s a different act altogether. When collection agencies cross the line to harassment, it doesn’t matter whether it’s through an estate or whether it’s just somebody that owes them money that’s still alive. You look at the Fair Debt Collection Practices Act, and there are a number of sorts of situations under there. They’re calling you at 02:00 in the morning. If they’re calling you 15 times a day, if they’re calling you at work after you told them not to call you in that kind of situations, you have to look at the Fair Tech Collection practices at the FDCPA.
Ryan Garrison (46:09)
That’s a tangent. When they straight up just tell you something as a complete falsehood that just seems like there’s fraud or some sort of harassment. It’s just wrong.
Dan Crowe (46:21)
Yes. The problem is proving it. If something had come of that particular conversation, we would have gone into court and I would have said, they told me this and they would have said, we never said that. We don’t know what he’s talking about.
Ryan Garrison (46:34)
And the judge would definitely I would like to pull discovery on recordings of their calls.
Dan Crowe (46:41)
If there was a lawsuit, that’s what I would do. But these are the kind of people who would say, wow, we forgot to hit the record button that day.
Ryan Garrison (46:52)
So this is going to be a different answer depending on if the person has passed or not. But let’s say that you’re either the family, the PR, getting ready to go meet with a probate attorney or perhaps ahead of time, maybe more in the estate planning. Or you just know someone’s terminally ill and they’re getting ready to pass.
What should the family, what should they prepare and bring and have when they come to a probate attorney appointment?
Dan Crowe (47:17)
So the first thing I tell people is this is not an emergency. You just had a terrible loss, or you’re going through a situation where you’re in the final days with somebody that you love very much. Spend the time with them if they’re still alive. Otherwise, spend some time with your family and hold each other close and tell stories about the person who passed away and make jokes and eat their favorite meal. Whatever it is, it makes you come together rather than apart. Sometimes grief tears people apart. Whatever makes you come together. Whatever way you can comfort each other, do that right now. You don’t have to probate the day after somebody dies. Never. That never has to happen. In fact, it’s impossible for it to happen because one of the things that I need is the death certificate. And you’re not going to get that. The day after that can take a couple of weeks. Usually, the funeral home will deal with ordering death certificates. They’ll also usually deal with talking to Social Security and notifying them to stop that person’s Social Security. Because if Social Security keeps paying Social Security into the account, Social Security is going to come take it out of the account.
Dan Crowe (48:18)
And if it’s not there, then there’s trouble. But yeah, first and foremost, don’t panic. Don’t freak out. I know this hurts. It’s supposed to hurt. It’s okay. Take some time. Deep breath. After they’ve done that, then what I need to see is I’m going to need to see a death certificate. I need an original. I’m going to need the will. I need the original. I need all of the heirs who are listed in the will or if there’s no will, then I need all of the heirs at law under that statute. And I’ll give them a list of who they need to give me. I need all of their contact information, names, phone numbers, addresses, what their relationship was, email addresses, whatever it is that I can get it. Give me everything to contact them. And I usually ask for kind of a basic rundown. You don’t have to have an inventory done yet. Give me a basic rundown. Was there real estate? Were there vehicles? Was there a mortgage on the real estate? Were there loans on the vehicles? Where were the bank accounts? Were there any insurance policies? Usually, life insurance policies don’t go into the estate.
Dan Crowe (49:30)
They’ll go straight to the beneficiaries. But I like to know if they were there. Was there a trust? That’s a big one. If there was a trust, I really need to see that. That’s a very important piece of paper. Several pieces of paper, but those sorts of things, where are we going to find the money? What am I going to have to do to figure out how to start the probate on this? And then I’m going to need information on the personal representative themselves. So whoever is going to actually be the personal representative, of course I need their contact info. I need to sit down and talk to them. I need them to sign an oath that says that they’ll take care of things. We’re going to have to run a background check on them. So I’m going to need to get some personal information so we can do that. You can’t be a personal representative if you have a felony. And there are some misdemeanors as well. We call crimes of moral turpitude. Isn’t that a wonderful phrase? If you’ve committed a crime of moral turpitude, stolen money.
Ryan Garrison (50:28)
I’m guessing stolen money and fraud are right at the top of that.
Dan Crowe (50:31)
Stolen money, fraud, elder abuse. If you emptied out a trust at some point, just pocketed all the money and gone to jail for that, they’re probably not a great idea for you to be the personal representative, right? So those kinds of things, I need all of that. Then I can get started on the paperwork. I’m going to have to have the personal representative come in and sign off on a lot of that. They have to sign an oath saying they understand they have a fiduciary duty and they won’t steal the money. But there’s a petition. There’s a whole bunch of stuff. There’s a petition. There’s cover sheets. There’s the oath, there’s the will there’s. Oh, my gosh. I think you’ve noticed to all the heirs, all of that kind of stuff. So all of that stuff I’ll put together for him to sign.
Ryan Garrison (51:20)
What should the family expect if they’re going to be going through this in Thurston County? What’s the range they can look at expecting this probate process to take for them?
Dan Crowe (51:44)
Are you asking the range for the whole thing to take before it finishes?
Ryan Garrison (51:48)
Yeah, time to get the letters, time to get the probate closed, that kind of thing.
Dan Crowe (51:55)
Okay, so, yeah, start to finish. From the day they come in to see me, I usually ask people to give me six months. We’re not going to be doing anything for a lot of those months. And this is any county, it’s really the same amount of time, because the majority of that is that four-month creditor’s notice period where we put the notice to creditors in the paper, and we’re just sitting around waiting for creditors to show up because that’s important. It’s like a statute of limitations. It kind of is. But think of it like a statute of limitations on creditors showing up, because what you don’t want to have happen is a year from now, some creditor shows up and says, hey, a bunch of money. And now you heirs have got all the estate. So at the very least, you got to discourage the estate and give it back to me. You want to be able to have a cut-off. So start to finish. We file all of our stuff. I’ve got to get it all put together, get everybody to sign off, whatever I need. I get that in front of a court, and I get the judge to appoint the personal representative.
Dan Crowe (52:53)
The judge will sign an order appointing them, and then I’ve got to get the letters testamentary to the clerk. They’ve got to issue them and do all their stamping and charges $20 or something, and then they give them back. Once you have that, then the rest of the process starts. Like I said, you can do distributions right away. You don’t have to wait any longer than that. You can pay the debts right away. You shouldn’t distribute everything, but you can do some. You can sell the real estate, you can sell the cars, all of that stuff. But I’ll also publish the notice to creditors. So then there’s a four-month period where we’re just twiddling our thumbs because all the work has kind of been done. Then at the end of the probate, after that, four months is up, we distribute whatever’s leftover. I have some filings with the court that I have to do to kind of finalize everything. And then it’s final. Okay. The reason I say six months instead of four months is because I like a little wiggle time on each side so that I can actually get in front of a judge.
Dan Crowe (53:52)
Sometimes there are delays and the paper doesn’t publish. When they say they do, they publish a week later. And so I need a little extra time.
Ryan Garrison (53:58)
Where do you define what are the responsibilities of the PR versus the attorney’s responsibility? And where is that baton passed?
Dan Crowe (54:22)
So my responsibilities, of course, are all the legal things, making sure the proper paperwork is put together and it’s filed with the court and any sort of interaction with the court that needs to happen, I take care of unless there’s something really weird going on, the personal representative doesn’t ever have to show up in court. But if there’s a will contest or something, then, by the way, then it’s going to take a long time. It’s not taking any six months at that point. So I take care of all of that. I give whatever legal advice needs to be given to the personal representative. But in terms of sort of heavy lifting types of things, the personal representative is going to have to figure that out. I’m not going to come to your house and help you empty out your order. Grandma’s house has got 5000 magazines and 10,000 Beanie Babies and God knows what else is in those places. I don’t do that. I do have services like I have guys that I’ve developed contacts with. If it’s really bad, I’ve got guys who can come take care of it for you. They’re going to charge.
Dan Crowe (55:21)
But sometimes I’ve seen biohazards houses where the hoarders are so bad that you should not go in there without serious protection. I don’t know how anybody lives like that.
Ryan Garrison (55:34)
Yeah, that’s our value add, our Sound Transition Team value proposition, as well as trying to be the one-stop-shop of helping them coordinate the cleaning, the estate sales stuff, securing the property, making sure the insurance gets changed because not a lot of people realize they need to change to a vacant policy.
Dan Crowe (55:57)
That’s true. I tell all my clients that, and sometimes they just don’t do it. Also, you had to deal with the insurance and you didn’t deal with the insurance and now you’ve got squatters.
Ryan Garrison (56:08)
And we have problems in Washington specifically. This is a question I think.
Dan Crowe (56:14)
Is there a difference?
Ryan Garrison (56:15)
Is it easier to get people ejected out of a house with the cops if you have posted no trespassing signs on the property?
Dan Crowe (56:25)
As a practical matter, not really. You should post no trespassing signs. There are some laws on that. If somebody really has set up shopping there and the cops look at it and they say, or the Sheriff or whoever goes out and looks at it and they say, “this looks like a civil matter to me”.
Ryan Garrison (56:40)
Dan Crowe (56:41)
Yeah, a civil matter means that they don’t want to file a report, like they don’t want to do any more real work on this. So they just kick it over and then we have to go in and do an adjustment action in those cases. But, yes, you absolutely should post no trespassing signs. Okay.
Ryan Garrison (57:01)
What is the probate cost in Thurston County? Do I have to pay upfront?
Dan Crowe (57:11)
It depends on who you go to. There are two things. There are attorneys fees, and then there’s all of your sort of administrative fees, like filing fees and stuff like that. It cost the publication. I generally tell people to budget around $500 for the fees. Thurston and Pierce County, I think, are the same. I think if we do it, we file them online. It’s 247. 50 to file 1247 point $50. Sometimes that changes by fifty cents. I think that’s about where it is. Fools around just to frustrate me. The publication is going to be about $200 to $300. So that’s what that is in terms of attorneys fees. I’m going to tell you, if it’s uncontested and we’re just kind of pushing the paperwork, it’s going to cost you about $3,500 in attorney fees for me to do it. Other attorneys may charge different amounts. You should find out what that attorney is actually going to do for those amounts. I’ve seen somebody come in and said, man, this guy was really cheap. And look at the amount. I said, “I don’t know how this guy stays in business”. What do you do? Well, he gave me a bunch of blank papers and had me go take care of everything I had to fill in the papers.
Dan Crowe (58:17)
Did he sell you a packet of forms for 500 people from Safeco? Yeah. I should get into the form production business and start selling packets of forms for $500. That sounds like a great gig.
Ryan Garrison (58:31)
The PDF only cost them 19.99, and he’s selling them for $500 right?
Dan Crowe (58:36)
So you need to find out what’s actually being done. Also with that attorney’s level of experience, is this the first probate they’ve ever done? Because even though I said probates are simple, in Washington, there’s still a lot they’re not that simple. There are a lot of different boxes to check. There are a lot of little rules that you need to know. Once you know them, you can run them right through. It’s certainly better than East Coast States where probate laws are a nightmare and California is another one that could be a handful. Nobody’s ever sure exactly what’s going on in Louisiana, because they’ve got French civil law and all the other States use English common law. We don’t understand then. So it might be complicated.
Ryan Garrison (59:20)
Why is it a Parish?
Dan Crowe (59:21)
Yeah, I know why you’re calling this Parish.
Ryan Garrison (59:28)
As either an investor looking to help the family and get rid of the real estate in probate, or as an agent helping the family through the process and liquidating the real estate and “stuff”, what are ways that we can best work with you as the attorney helping the family to make the process go smoother and also earn the attorney’s trust?
Dan Crowe (59:57)
Okay. So you can have a basic understanding of probate. That’s the first thing that I find really helpful. I’ve got agents that I work with on a pretty regular basis, and that’s because I’ve actually sat down with them and really explain the process and explain the timelines and let them know that this is not something that’s negotiable, even though everything in your life as a realtor is negotiable and everything in your life could be pushed up on the timeline. This cannot these are, these are rules. And then when the court says this is the rule, it’s the rule. So if I tell you something is going to take two months or take four months because I’ve got a four-month nose period or whatever, that’s really how long it’s going to take. Understand that I don’t set these timelines, and you can yell at me and you can argue with me and you can tell me that we’ve got to close next Thursday, but you’re not going to close next Thursday. Don’t be mad at me. It’s not my fault. It’s the same thing with a quiet title. If you’re a real estate agent and you’re about to take on a listing, get a look at the title right now.
Dan Crowe (01:00:55)
You can do it before you even list the property. You can do it before you accept an offer on the property. You can go to the title company and say, I need a title guarantee on XYZ property. They’ll send you the whole thing, and then the price of the title policy will adjust based on the price of the house. But you at least get to look at the title, because what I hate the most is when I get calls and it’s a realtor, and they say it looks like 45 years ago, there was a real estate contract and nobody ever recorded the fulfillment deed. And we can’t find any of the people who were involved in this. And I say, okay, we have to do a quiet title action. That’s how we fix it. That’s exactly what we’re fixing on the one we talked about earlier. So we have to do a quiet title action. And they say, great, we’ll maybe close on Thursday. You’re not. You may close on a Thursday, but not this Thursday. How many Thursdays is it going to take a lot of Thursdays for the title action? Yeah. I’m sorry. There’s one title company that I know if they decide that this thing is going to be almost a Slam dunk on a quiet title action.
Dan Crowe (01:02:01)
They’ll let you close as soon as you file the quiet title action. I don’t know how they’re getting away with that. There’s only one of them. I shouldn’t name names. Every other title company says, no. As soon as title is vested on the person selling the house, then you can close. And that could take a while. I mean, those things. I got to do a lot of research to figure out who the actual heirs are and who the people are, whether they’re dead. I got to stick my people on them to see if we can find somebody that we can serve. I got to file a thing with the court. I got to go to court and convince the judge to allow me to serve by publication because we really can’t find any of these people. Sometimes it’s worse when we find somebody. I found some guy in a nursing home that was 95 years old. I had to deal with his daughter, who is his power of attorney, and she says, I don’t know if that got paid off or not. I don’t know whether I should sign off on this. I’m like, Come on, you’re killing me here.
Dan Crowe (01:02:57)
You know, by the time 40 or 50 years have gone by, even if it never got paid off, your statute of limitations is run by decades and decades.
Ryan Garrison (01:03:10)
Or does someone else ever have to compel them to sign it?
Dan Crowe (01:03:14)
No, it’s not a matter of compelling somebody to sign it in those cases. What we do in those cases is we bring what’s called a summary judgment motion. And we say, okay, if you want to fight us on this, that’s fine, but we get them served. We bring that summary judgment motion, which is basically a motion where you’re going to court and say, Based on the facts, this contract was due to be paid in full 45 years ago. No fulfillment deed was ever filed. Statute of limitations on a written contract. We kind of go through our thing, and the judge says, okay, I’m ordering that the property is quieted in your client’s name. So it’s extra work. It’s an extra cost.
Ryan Garrison (01:03:51)
Dan Crowe (01:03:53)
But then it’s an extra at least month because the notice period for a summary judgment under Cr 56 is 28 days. Okay. Longer, depending on what the court’s calendar looks like.
Ryan Garrison (01:04:07)
Give me a ballpark number of Thursdays on the quiet title. If you don’t use the one title company.
Dan Crowe (01:04:12)
Do I actually have to count by Thursdays? I can’t do math like that – about three months. No, I get the thing filed. I have to make a legitimate effort to find somebody to serve because that’s part of the rule that allows me to serve by publication. I go into court, I get the authority to serve by publication, and it’s 60 days after that. So now you’re probably looking at three months, and then I could get in on the default. If I’m really raising you’re probably looking at four months. If I go to full speed and I’ll tell you, they usually take a little more because the court is going to want to see a real concerted effort for me to either find the people who were involved in the transaction or if they’re obviously dead, then to find heirs was their estate probated. Who are the heirs there? Because those would have the property rights. Those could be tricky. I like them because they’re fun, but they can be tricky.
Ryan Garrison (01:05:17)
So figure 18 Thursdays.
Dan Crowe (01:05:19)
Got it. Is that how many Thursdays that is? If you say so. The new unit of measure do anything to avoid measurement. How many Thursdays is that.
Ryan Garrison (01:05:37)
If the deceased does have some or all their assets in a trust tied into it, what does that do for your process? Do we still have to go through probate? What changes?
Dan Crowe (01:05:46)
So we don’t have to go through probate at that point. But the process is almost identical. That’s why I tell people, don’t use a trust to avoid probate, you’re wasting your time and you’re wasting your money. There are other reasons for trust. There’s great reasons for trust. But avoiding probate is not one of them, no matter what the people on the Internet say.
Ryan Garrison (01:06:06)
Is that like a Washington probate with Trusts thing? I have another probate attorney friend here in Washington. He says the same exact thing you’re saying right now. But what about other parts of the country?
Dan Crowe (01:06:15)
I may hear that’s a Washington thing.
Ryan Garrison (01:06:17)
Dan Crowe (01:06:18)
Yeah. In other parts of the country, like I said, the probate laws are different from state to state. We started off on the East Coast, and we had 13 colonies, and then we had this thing in 1776 that you may have heard of. It was a big deal. We became 13 States, and we kept English common law. And the laws for inheritance and everything from England were complicated because the people in England who owned stuff that was worth inheriting, I don’t know. Royalty, the Lords and ladies. Yeah, I don’t know how that works. It’s like doubt Navy stuff. But they were complicated as we developed as a nation westward, excepting the French and Louisiana, who just did their own thing when we bought them from France. But as we moved westward as a nation, the laws just got easier and easier and easier. Towns got fewer and further between. There was a long distance between towns. Towns were little, tiny. They didn’t necessarily have a full time judge and courthouse. So they had a judge writing a circuit from town to town to town, which is where we get circuit courts. That’s the circuit court, right?
Dan Crowe (01:07:18)
The judge is writing a circuit, and the judge was there for however long the judge was there. But there was not a whole lot of time that a judge could dedicate to dealing with things like probates and unlawful detainers are another one. There’s a handful of areas of law. The judge was busy doing, like, old west stuff. It was the old west. He was hanging horse thieves and getting in bar fights with John Lane and shootouts and stuff, but he wasn’t dealing with it. So by the time you get to Washington, we have a very simple probate process compared to the East Coast.
Dan Crowe (01:07:48)
That’s a long way of saying yes. It’s very much specific to what state you’re in. And in some States, it’s a really good idea to have a trust to avoid probate because probate is a nightmare. The exception to the rules is California. California’s got a complex probate because they’re like, we had it easy, but then we made it more complicated. So trust is probably a good idea. There not a good idea here, but the process because, like I said, the process is very similar. We’re still publishing notice to creditors. We are just distributing out of the trust instead of out of the estate. We don’t have to go to sort of the effort of opening the estate because you don’t go to court for that. Sometimes we’re pouring over assets. Like I said, you have to have a poor overwell because people will forget to fund their estate or fund their trust. Okay. For the rest of your life, everything goes in the trust.
Ryan Garrison (01:08:40)
I do wish our unlawful detainer laws were wild, wild west style here.
Dan Crowe (01:08:44)
Well, they were actually pretty simple until a couple of years back. We had this little pandemic problem, and then everything got rewritten. And now you’re right. It is a mess. I promise. They were better four years ago, right? I didn’t change anything. They didn’t ask me. They just changed.
Ryan Garrison (01:09:10)
What if my family member was a Medicaid recipient? And how does that change the probate process?
Dan Crowe (01:09:20)
Medicaid does change the process. It changes the process. First of all, the state planning beforehand, which everybody should be doing. I can’t urge people enough. Please do some estate planning. Do it with a professional. Don’t download stuff off of Facebook or off of whatever the Internet or your cousin Larry told you that you need this particular document. Don’t sit down with a professional. Do it right. Medicaid is a big deal. Medicaid. It’s a different program than Medicare. You get Medicare because you paid into Medicare your whole life. It’s an entitlement program. You’re entitled to it. That’s what an entitlement program actually is. You paid into it, you get it back. It’s your money. Medicare. But Medicaid is need based. So with Medicaid, you have to be almost destitute. You have to have very little in terms of nonexempt assets. It’s like $2,000 worth of non exempt assets, but you can have exempt assets, and that includes your real estate, your home, where you live. Not all real estate. If you have investment properties there that those don’t count. But your own private house, you can have a car worth a certain amount close on your back.
Dan Crowe (01:10:29)
You have a TV set. I mean, there’s things like that that don’t count towards your $2,000 limit. But the thing is, when you pass away, then in Washington state is DSHS that administers it. Dshs will assert a lien on your real estate for what they’ve paid into Medicaid for you. They want to get paid back. So one of the things we do with every single probate, I don’t care if this guy was a millionaire and we know for a fact he was on Medicaid. We notify DSHS. Anyway. We just sent him a notice and says, hey, if you guys think there’s a lien, you better tell us right now and we’ll deal with whether there’s a lien or not. But let us know right away. Yeah, that’s a big deal, because that’s one that we can’t really disclaim. If DSHS comes in and says, yes, there was a lien, he was on Medicaid, we can ask him to prove it, but I’ve never seen him not be able to prove it. They can always prove it because they got to make stuff off. They don’t care they got the records or they don’t have the records.
Dan Crowe (01:11:30)
If they have the records, they make the claim and then we have to pay it off. So the value of your house could be pretty severely impacted by that.
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Ryan Garrison (01:11:41)
What’s the lookback period for Medicaid?
Dan Crowe (01:11:45)
For the exempt assets for gifting?
Ryan Garrison (01:11:49)
No. So my understanding, you can tell me if I’m off on this. But for example, let’s say we put my personal home into a trust, and I believe it’s five years.
Dan Crowe (01:12:01)
That is for gifting.
Ryan Garrison (01:12:03)
Dan Crowe (01:12:06)
I was going to say there are two types of trust.
Ryan Garrison (01:12:07)
Dan Crowe (01:12:08)
There’s a billion types of trust. That’s an exaggeration. There’s a lot of types of trust, but there are two categories that are important here. Category number one is a revocable trust, a revocable living trust. Category number two is an irrevocable living trust. So a revocable living trust, just like the name implies, is a trust that you can revoke. You can come in and say, I don’t want this trust anymore. I’m taking everything out. Or you can say, I don’t like the way paragraph eight reads, I’m going to rewrite paragraph eight and make it different. If you put a piece of real estate into a revocable living trust, that will not help you qualify for Medicaid, because they consider that as not being sort of a gift that you can’t take back. You can take it back anytime you want. So you have to do in order to Dodge it for Medicaid purposes, you have to do an irrevocable living trust with an irrevocable living trust. You can’t revoke it. That’s what the name says, right? It’s irrevocable. So once you’ve got that trust, you’ve got that trust, you are stuck with it. And there is a process called decanting where we can kind of take stuff out.
Dan Crowe (01:13:09)
It’s not a very satisfying process. It’s complicated. I don’t enjoy it. Nobody enjoys it. You want to kind of avoid doing that if you can. The other problem with the revocable trust for Medicaid planning is there is, like you said, there’s a five year look back period, because when you put the property into the trust, it’s considered to be a gift. Anything that you give away five years before you qualify for Medicaid, that can disqualify you. There are some exceptions. There are some ways to kind of get around it partially. But for the most part, if you’re giving away gifts, that disqualifies you from Medicaid for five years, if you give the property to your brother, you said, hey, I’m giving you a title. Congratulations. I’ve just gifted you the title to my property. You own it now. But how about you just kind of let me live there and we’re going to be cool until I die.
Ryan Garrison (01:14:03)
Yeah. That’s an adverse selection kind of thing where they don’t want people that know they’re going to need the Medicaid pretty soon trying to give away stuff right before they need it and scamming the system.
Dan Crowe (01:14:16)
Exactly. Because that’s what it would be. You say, oh, I’ve got all these assets. I’m not going to qualify for Medicaid. I’m going to have to spend down all of my assets, and then all the stuff I work for my whole life is going to be gone. I don’t like that. I’m going to give all my stuff away to other people and then look at me, I’m broke.
Ryan Garrison (01:14:33)
Yeah. I don’t have anything.
Dan Crowe (01:14:37)
No, I’m generous now. Is it a sliding scale Medicaid, you do not want to mess around?
Ryan Garrison (01:14:43)
The government is good at that. Is it a sliding scale so that if you did it, let’s just say I put it in the trust four years ago. Is it the same as I didn’t do it at all, or is it like a portion?
Dan Crowe (01:14:56)
It’s like a portion. It’s a little complicated. And you’re really best off sitting down and talking to somebody about your own personal experience, your own personal situation on that. I don’t want to get into that too much because there are a lot of people making sort of major legal decisions based on what I’m saying on the Internet.
Ryan Garrison (01:15:15)
Do your Disclaimer, give us the Disclaimer and we can definitely review it.
Dan Crowe (01:15:19)
Nothing here is intended to be legal advice to anybody who’s listening to this. We have not created an attorney client relationship with you. You need to talk to your own attorney. You’re welcome to talk to me, but not based on what this is. I am not creating that kind of relationship with anybody at all because everybody’s experience is different. Everybody’s situation is different. Your assets are different than my assets. Your liabilities are different than my liabilities. You need to sit down with somebody and figure out what exactly is right for you and how those rules are going to apply to you. Don’t listen to some dude on the internet. That’s a mistake.
Ryan Garrison (01:15:55)
So Dan, if people wanted to get a hold of you how would they do that? Where would they find you?
Dan Crowe (01:16:06)
Okay, so I’m easy to find you can find my crowelaw.net, you can reach me at 360-810-8006 and whoever answers the phone will be able to access my calendar and set up an appointment. We are by appointment only. I’m located in Yelm which is way out in the Boondocks of Eastern Thurston County but if you don’t want to make the drive out to beautiful Yelm I’m also happy to meet via Zoom or via telephone or whatever you’re most comfortable with. Awesome. My practice primarily includes Thurston County, Pierce County and Lewis County. Those are the three areas I’m most familiar with but in terms of estate planning I can help you anywhere in the state of Washington. We now have a new law as of January that allows us to do remote signings which is wonderful so we can actually do our will signing remotely.