Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone, usually the surviving spouse or other close family member, authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Probate in Washington typically takes six months to a year, depending on some choices the executor makes (discussed below). It can take much longer there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters. Unless there is a dispute, it's mainly a matter of filing paperwork.
Will Probate Be Necessary?
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets can probably be transferred to their new owners without probate.
Examples of common assets that do not need to go through probate include:
- assets the deceased person owned in joint tenancy with others, which pass automatically to the surviving owner(s)
- assets that are subject to the terms of a community property agreement signed by the deceased person and his or her spouse or domestic partner
- assets for which a beneficiary has been named outside of the will—for example, retirement accounts for which the deceased person named a beneficiary, or payable-on-death bank accounts
- life insurance proceeds or pension benefits that are payable to a named beneficiary
- assets held in a revocable living trust
Small Estates: Claiming Assets With an Affidavit
If the total value of the probate estate (the assets that can’t be transferred to inheritors in another way) is small enough, probate won’t be necessary. Currently, Washington allows estates worth up to $100,000 to avoid probate. Inheritors can claim the assets with a simple sworn statement (affidavit).
For more on this, see Probate Shortcuts in Washington.
Who Serves as Executor or Administrator
If probate is necessary, the person named in the will to serve as executor goes to the superior court in the county where the deceased person lived and starts the process. The prospective executor files the will, if any, with a document called a Petition for Probate, which contains a request to be formally appointed as executor. The current filing fee for filing both together is $240. (Wash. Rev. Code Ann. § 36.18.020.)
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” The surviving spouse or registered domestic partner, if any, has first priority to be appointed as administrator. This person does the same job as an executor. Either is referred to as the estate’s “personal representative.”
The probate court issues a document called “Letters Testamentary” (to an executor) or “Letters of Administration” (to an administrator). This document is proof of the personal representative’s legal authority to collect and manage estate property.
The personal representative is entitled to collect a fee for the work performed for the estate. If the will includes directions for how to calculate the fee, they must be followed. If the will doesn’t mention fees—and most don’t—the amount is based on the amount of work done and must be approved by the court. Many personal representatives who inherit money from the estate choose not to take a fee, in part because the fee is taxable income.
Requesting Settlement Without Court Intervention
In certain circumstances, the personal representative can request permission from the probate court to use a simplified probate process. This lets the personal representative administer and close the estate without any court supervision. The personal representative can sell, lease, borrow against, or distribute estate property without the court’s approval, and without giving notice to beneficiaries, heirs, or creditors.
The court may grant a request for “nonintervention” if the estate is solvent (has more assets than debts) and:
- if there is a will, the executor named in the will makes the request, or
- if there is no will, the surviving spouse or domestic partner makes the request, the estate consists entirely of community property, and the deceased person left no children or grandchildren from another relationship, or
- the personal representative is not a creditor of the deceased person and the court determines it would be in the best interests of the beneficiaries and creditors.
Handling Estate Assets
In broad overview, the personal representative’s job is to:
- collect and inventory the deceased person's assets, and keep them safe
- pay valid debts and taxes, and
- distribute the remaining property as the will (or if there's no will, state law) directs.
The personal representative should keep careful records (for example, receipts, bills and bank statements) of how estate assets are handled and distributed. The personal representative should inventory estate assets and estimate their value, but in Washington the inventory does not have to be filed with the court unless an interested person requests it.
Usually, the personal representative opens a checking account for the estate, and uses it for amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments), and to pay estate expenses.
The personal representative has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
If the deceased person owned real estate in another state, the personal representative may need to conduct a second probate proceeding, in that state. That’s called an ancillary probate.
Dealing With Debts and Taxes
In Washington, executors can choose whether or not to publish (in a local newspaper) formal notice of the probate court proceeding. If the executor does publish the notice, and also sends it to all known creditors, creditors will have just four months in which to make claims against the estate. If they don’t, their claims will be barred. Otherwise, creditors have two years from the date of death in which to bring claims. An executor who is concerned about claims coming in later usually chooses to publish notice.
If there’s not enough money in the estate to pay all debts, the personal representative must turn to state law, which prioritizes claims. The family allowance has the highest priority, followed by probate expenses, funeral costs, and taxes.
It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2013, more than $5.25 million. More than 99.7% of all estates do not owe federal estate tax.
The state of Washington imposes its own estate tax, in addition to the federal tax, on estates worth more than $2 million.
Distributing Property and Closing the Estate
The personal representative can distribute estate assets to inheritors only after debts and taxes are paid. The personal representative follows the instructions in the will, or if there is no will, turns to state “intestate succession” law to determine who inherits.
A personal representative who has paid all debts, filed the required tax returns, and distributed all the estate assets formally requests the court to close the probate case. The process is simple if the personal representative gets all the heirs and beneficiaries to sign a Receipt and Waiver document. If they don’t, the personal representative will have more notices to give and documents to file.