What to Expect when Probating a Will
Dealing with the loss of a loved one is difficult enough without having to deal with a lengthy and often confusing court proceeding. Many people that are tasked with serving as a personal representative of an estate have never done so before and have trouble determining what exactly they must do. Hiring an attorney can help alleviate this stress and simplify the process. The following are answers to some commonly asked questions.
Do I need to do anything right away?
No. You do not need to do anything immediately after your love one has passed and you learn you have been appointed personal representative. I tell clients to take care of any services and family issues first. In fact, I encourage them to take the time they need before proceeding on with the legalities. In fact, if you are filing a small probate affidavit (more on that in a minute) you have to wait forty days before doing so. RCW 11.62.010.
What is my first step?
I would first determine if there is a will. If so, double check that you have been appointed personal representative. If there is no will, you may still be able to be appointed personal representative. Typically, a spouse or offspring will assume this role. You may charge the estate a reasonable fee for doing so but the role can be a lot of work and responsibility so I would not take the appointment lightly.
I would next determine the assets of the estate. What bank accounts are there? Is there any real estate? Vehicles? Personal belongings? I would start to assemble an asset list as well as bank statements and deeds/title to property. I would also compile a list of creditors and any other known liabilities.
Can I do a small estate affidavit?
If the estate does not include real estate and is valued at under $100,000.00 dollars, you may do a small estate affidavit. RCW 11.62.010. This is a much simpler and faster process than the traditional probate. The personal representative must send notice to any known heirs, wait forty days after the decedent has deceased, and then complete an affidavit. The personal representative may then disburse the estate pursuant to the will or the testate laws if there is no will.
What if the estate does not qualify for a small estate affidavit?
You then must file a petition for probate. If granted, the court will then appoint a personal representative of the estate. If there was a will, the personal representative will be granted what is called Letters Testamentary. If there was no will, then the court will grant Letters of Administration. Either way, these letters will give the personal representative the ability to carry out the business of the estate. This includes transferring funds, selling assets and distributing the proceeds of the estate.
After I am appointed personal representative what do I do?
At this point you will need to publish a notice to creditors. What this does is notify any potential creditors of the estate that the estate is set up. You must publish the notice in a local paper that will run the notice for ninety (90) days. I typically use the Reflector of the Columbian. The creditors must respond within this ninety (90) days if they wish to make a claim against the estate. If the creditors respond then you can analyze the claim and if legitimate pay it out of the proceeds of the estate. If the claim is not legitimate you can contest it as part of the probate proceeding. If no creditors respond than they waive their rights to make a claim against the estate.
Do I need to set up an estate account?
Typically yes. You can get an EIN for the estate and present the bank with the Letters Testamentary or Letters of Administration and set up an account for the estate. You can then transfer the funds to this account. You can also liquidate (sell) any real estate or other non-liquid assets.
What about life insurance?
Life insurance is not an asset that is subject to probate. Neither are retirement accounts that have a beneficiary. Generally, any type of account or policy that has a beneficiary will pass directly to the beneficiary without the need for probate.
When do I make distributions?
It is best to wait until the ninety (90) day notice to the creditors has run and all expenses of the estate have been paid to make distributions. Otherwise the personal representative could be held responsible for these liabilities. You can then distribute the proceeds of the estate as indicated in the will and, if no will, as indicated in the testate statutes. This process will vary widely depending upon the particulars of each estate and an attorney can help you determine the best course of action here.
What do I do after the distributions have been made?
At this point your work will most likely be done. You will file final closing papers with the court and the estate will be closed. If I can be of any assistance to you in answering questions regarding the probate procedure feel free to contact me.
The information on this page does not constitute legal advice and should not be relied upon as each situation is fact specific and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. The information on this page is solely for the purpose of legal education and is intended to only provide general information about the matters stated therein. The information on this page should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area of the matters stated therein. No attorney-client relationship is formed without an actual agreement confirmed in writing. I am licensed only in Washington, Oregon and Arizona.