The period following the death of an individual can be highly stressful and difficult to navigate, particularly regarding their estate planning documents. This is largely due to the legal complexities surrounding an individual’s estate. One such challenge is the distinction between testate vs. intestate probate, and how to properly manage the estate according to the deceased person’s Last Will and Testament (will) as well as other estate planning documents.
What happens when the individual does not leave a will? This issue, also known as intestate probate, complicates the process of estate distribution. At Baxter Legal Service, our experienced legal team works alongside our clients to address questions surrounding testate vs. intestate probate and ensure legal rights remain protected for all parties involved. For more information regarding how to handle your estate, or your loved one’s estates, call us today at 425-686-0574.
What Is the Status of the Will?
When a decedent (deceased individual) passes away, the court goes through a process of gathering the decedent’s assets, paying any debts, and transfer assets to inheritors. This process, referred to as probate, is contingent on the decedent’s last will and testament. If they have left a will in place, it is said they have died testate.
In some cases, however, the decedent does not leave behind a last will and testament. When a decedent passes away without leaving behind a will and testament, they are said to have died intestate. Dying intestate means that there is no viable will for the court to honor. Generally, this can happen under two circumstances:
- No will was submitted to the court
- The will has been deemed outdated or unacceptable by the court
The legal proceedings following the death of an individual vary greatly depending on whether testate or intestate probate is applicable.
What Is Testate Probate?
The more straightforward of the two, testate probate allows the decedent to specify how their assets are distributed using a last will and testament. Washington state law does not require that a probate be filed, but individuals can opt for probate in some cases. Generally, probate helps prevent any contesting of the will, as it allows the court to supervise the distribution of estate.
Commonly, probate it utilized when the decedent passed away while holding:
- Real property in his or her name
- Personal property, in his or her name, which exceeds $100,000 in value
Such assets will pass to the decedent’s beneficiaries according to the terms of their will. Dying testate allows the decedent to:
- Name a personal representative to fulfill requests
- Name any inheritors to receive property and other assets
- Name a legal guardian for children
- Establish a testamentary trust
It should be noted that for a will to be considered valid in Washington state, it must be filed within at most 40 days of decedent’s death. If the court declares a will invalid, then the decedent will be said to have died intestate and probate proceedings will adhere to the relevant provisions.
What Is Intestate Probate?
A person dies intestate when they do not have a valid last will and testament. This can complicate the probate process, as assets are divided according to Washington state law. The Revised Code of Washington 11.04.250 and 11.02.070 states that the estate of a person who dies intestate shall be distributed in the following order:
- First, to the spouse or registered domestic partner
- Second, to the children of the decedent
- Third, to the grandparent or grandparents
- Finally, if the decedent does not have a spouse, children, or grandparents, then the estate will be distributed among the children of grandparents
If you die intestate and have a spouse, what they will receive depends on the way that any owned property was split between partners. Washington law classifies this into separate property and community property, with community property being any property that was acquired during marriage. Notably, any gifts or inheritances given to a spouse are considered separate property, regardless of when they were acquired. The spouse will inherit half of any community property and at least a portion of any separate property.
Children of the decedent will receive an intestate share of any assets or property, with the amount depending on how many children and their relation to you. For instance, foster children and stepchildren will receive a different share than biological or adopted children. Child-parent relationships can be highly nuanced, especially in intestate probate, and for this reason it is advised to speak with an attorney to learn more. The team of experienced estate attorneys at Baxter Legal Services are available to discuss this issue, among others.
Essentially, intestacy results in an all-encompassing, one-size-fits-all last will and testament. This is the primarily difference between testate vs. intestate probate: the ability to clearly define posthumous wishes through a personalized last will and testament.
Navigating Testate Vs. Intestate Probate with an Experienced Estate Planning Attorney
Moving forward after a loved one dies is an already difficult process that is further complicated by legal proceedings and court involvement. While a loved one’s wishes may have been discussed before their passing, the court must follow state law regarding probate and estate distribution. As such, the issue of intestate probate is both common and highly stressful to navigate.
If your loved one has died without leaving behind a last will and testament, it is crucial to adhere to Washington law while distributing their estate and assets. Many individuals face serious concerns while moving through this process and are unsure of where to turn. The attorneys at Baxter Legal Services can help you understand how to navigate testate vs. intestate probate, while keeping your loved one’s wishes in mind. Do not hesitate to call us at 425-686-0574 to learn more today.