Probate

PROBATE LAW IN WASHINGTON

Probate is the legal process employed when winding up the affairs of a deceased. The Probate process gives an opportunity to resolve issues such as the payment or denial of payment on unpaid debts held at death, questions concerning the title to a piece of property that may have been owned by the deceased, and any number of other matters. The laws of probate in the State of Washington is governed by Title 11 of the Revised Code of Washington in ? PROBATE AND TRUST LAW .?

In all cases where there is a will, even if there will be no probate or other estate administration procedure, the will should be filed with the nearest Superior Court.

It requires by the Law of the State that the Will needs to be filed within 30 days of the date on which the person having custody of the will learns of the death of the deceased. Copies should be mailed to all known heirs and persons named in the will.

PROBATE PROCEDURE

In Washington, a probate proceeding is started by the filing of a legal document called a petition, along with the will of the deceased person and the filing fee of $110.00.

Probate is most commonly started by a family member or another person with a direct interest in the Estate, though the law provides that some outside party can start the matter if nobody else does.

Frequently, a creditor or attorney will step in if no family member proceeds with the probate and there are substantial assets or legal matters involved.

The usual probate procedure takes between four months and one year . In many cases, some distribution of the estate can be made while the matter is pending.

If no will can be located, the laws in Washington provide that the estate of the deceased person is to pass to the next of kin, in a specific "order of succession".

Once the ?Will' has been approved by a judge or commissioner, or the determination is made that the Estate is to be resolved as an "intestate administration" (without Will), the probate is under way and the person who is appointed as personal representative or administrator of the estate is responsible for seeing that the proper notices are sent out and the assets and debts of the deceased person are properly cared for and, ultimately distributed.

The process is too complicated and varied to describe here, but the basic outline is as follows:

• heirs and persons named in the will are notified of the proceeding and given an opportunity to come forth with questions or concerns about the will or the process or simply given the opportunity to ask to be kept informed about the process;
• potential and known creditors or people owed money by the decendent are notified and given similar opportunities;
• the personal representative takes control of all assets and prepares an inventory of the estate;
• the personal representative pays all legitimate debts and expenses;
• the personal representative makes distributions of the estate according to the directions contained in the will; and
• the personal representative files a final report which may or may not have to be given formal approval and that person is then dismissed from that service.

During this process, properties may be bought and sold, trusts may have to be established, and any number of other business matters may be attended to. Also during this process, persons entitled to some portion of the estate may be able to obtain access to certain assets or even may receive outright the majority of their ultimate distribution.


SMALL ESTATE PROCEDURE

Assets from an estate with a total value less than $60,000 may be transferred by affidavit without any probate.

Washington's "small estate" procedure, applies to estates valued at $60,000 or less, and allows the bank or a holder of other assets to release those assets to the person presenting the proper affidavit to them. The affidavit procedure is useful if there is a relatively simple estate and little or no debt, but it cannot be used to transfer real estate and it does not resolve numerous issues which are properly addressed in a probate proceding.

In order to obtain transfer of assets such as a bank account or a stock certificate, etc. the will should be filed in the nearest Superior Court as stated above, and 40 days after the date of death the person who is entitled to such an asset can send notices to all prospective heirs that they are claiming a right to the asset and then deliver to the bank, stock issuer, etc. an affidavit stating that they have done this and they have a right to that particular asset (a copy of that affidavit must be sent to the Department of Social and Health Services). See RCW 11.62.010 for the details.

DISTRIBUTION OF REAL AND PERSONAL ESTATE

The net estate of a person dying intestate, or that portion thereof with respect to which the person shall have died intestate shall be distributed as follows:

•  The surviving spouse shall receive the following share:

1. All of the decedent's share of the net community estate; and
2. One-half of the net separate estate if the intestate is survived by issue; or
3. Three-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents, or by one or more of the issue of one or more of his parents; or
4. All of the net separate estate, if there is no surviving issue nor parent nor issue of parent.

•  The share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, shall descend and be distributed as follows:

1. To the issue of the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or if of unequal degree, then those of more remote degree shall take by representation.
2. If the intestate not be survived by issue, then to the parent or parents who survive the intestate.
3. If the intestate not be survived by issue or by either parent, then to those issue of the parent or parents who survive the intestate;
4. If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents who survive the intestate, then to the grandparent or grandparents who survive the intestate;
5. If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents or by any grandparent or grandparents, then to those issue of any grandparent or grandparents who survive the intestate; taken as a group, the issue of the maternal grandparent or grandparents shall share equally with the issue of the paternal grandparent or grandparents.