The period following the death of a loved one is often emotionally tumultuous and stressful. Between funeral arrangements and personal issues, it is easy to become overwhelmed. One of the most important matters to address after a loved one passes away is the management of their property and financial affairs. In some situations, a family will need to go through the probate process after a loved one’s death. While the probate process may be time-consuming and arduous, it is possible to mitigate stress with a full understanding of what to expect and how to seek help during this difficult time.
One of the central focuses of our work at Baxter Legal Services is estate planning and probate. We work alongside our clients to simplify and streamline the probate process, ensuring that all common pitfalls and legal missteps are avoided. To learn more about how our experienced estate planning attorneys can help you, consider contacting our legal team today at (425) 686-0574 to schedule an appointment
What Is Probate?
Probate refers to the legal process in which all assets of an estate are assessed and distributed to beneficiaries. A beneficiary is the person – or in some cases entity – who is identified as a recipient of the assets or property of an estate. Beneficiaries can be designated in the estate plan of a person, in their Last Will and Testament (Will) or in certain financial documents such as life insurance policies or banking accounts.
When an individual passes away, their assets and properties must be transferred to new owners. If the person died with a Will, probate is the general administration of that will. If they died without a Will, the probate process is used to identify beneficiaries and distribute the asset according to state law. Probate is also used to pay any remaining debts or liabilities on a person’s estate.
What Does the Probate Process Entail?
As probate is a court-supervised process, there are specific rules and procedures that are followed throughout. While probate is not always necessary in Washington, state law requires that a person’s valid and signed Will be filed with the Superior Court of the county where the deceased passed within 40 days of their death. For residents of Monroe, the appropriate court is the Snohomish Superior Court.
Depending on the deceased’s estate plan, specific individuals must be notified of their death. If they had a Will, the personal representative named within the Will must be notified so they can begin distributing the estate. Similarly, if the deceased left a Trust, the trustee must be notified to manage the Trust. These individuals will be obligated to oversee key aspects of the probate process.
To officially begin the process, a petition for probate must be filed along with the original Will and a copy of the certificate of death. The probate court will then issue a document to the personal representative, which acts as proof of their legal authority to collect and administer the property and assets of the estate. The responsibilities of the personal representative include:
- Collecting and inventorying the deceased’s assets
- Managing the assets during the administration process
- Receiving and paying creditors
- Distributing other assets to all beneficiaries
In Washington state, the personal representative is entitled to compensation for their work in the probate process. This amount is based on the work completed and shall be approved by the court. In some cases, the personal representative may be able to request a simplified probate process known as nonintervention administration. Using this simplified probate process, the personal representative can administer the estate without the need for court supervision. Alternatively, if this option is not possible, the personal representative is required to obtain court approval before taking any action.
In many cases, the personal representative will open a specific checking account for the estate during the probate process. This person is also responsible for handling all debts and filing final income tax returns for the deceased individual. During the probate process, it is essential to keep detailed records of how the estate is handled, transferred, and distributed. Doing so can help ensure that legal issues do not arise down the line.
How to File Claims in Probate
It is not uncommon for a person to have outstanding debts at the time of their death. During the probate process, debts are reviewed and addressed by the personal representative. In probate, claims are used to formally request payment for a debt. Creditors are required to file a claim to be considered for payment.
To file a claim, it is first necessary to identify the court in which the estate is being probated. Typically, probate is conducted within the county that the person resided, died, or held property in. Then, a creditor’s claim form must be filed. The information requested in the form varies from court to court, but almost always requires basic information regarding the debtor, creditor, and nature and amount of the debt. Documentation may be necessary to prove the existence of the debt, such as a bill of sale or a copy of a valid contract. It should be noted that there are time limits placed on the filing of claims, which can be found in Section 11.40.051 of the Revised Code of Washington.
What Is Probate Litigation?
In some cases, disputes may arise regarding the distribution of a person’s estate. Probate litigation refers to the judicial proceeding that arises to address a perceived wrong that occurred during the probate process. Various scenarios can result in probate litigation, including:
- The validity of the Will is being contested.
- Improper procedures were utilized, resulting in the incorrect appointment of the personal representative.
- An individual believes that the personal representative has overcharged the estate when collecting executor fees.
- To assert that the personal representative is not properly managing the estate.
- Guardianship matters must be addressed.
- There is a dispute regarding the appointment of a Trustee.
Probate litigation commences when the interested party files a complaint to notify the court of a dispute. After the other parties are served a copy of the petition and answer the lawsuit, the legal proceedings begin. While sometimes unavoidable, probate litigation is a time-consuming and demanding legal process. As such, seeking assistance from an experienced probate litigation attorney can be essential.
What Is the Cost of Probate?
One of the most notable disadvantages of probate is the cost. Between filing fees, out-of-pocket expenses, and personal representative compensation, probate can quickly become expensive. The total cost of probate varies depending on a range of factors, such as:
- Size of the estate
- Type of assets and property involved in the estate
- Number of beneficiaries and creditors
- Legal disputes
- Presence of an estate plan
Some probate costs are common in the majority of cases, including filing fees, copying and mailing expenses, and publication of probate notice fees. These fixed costs typically add up to roughly $350 dollars and can be expected regardless of the size and nature of the estate.
Other potential costs depend on the individual estate and the preferences of the personal representative. In some cases, it may be necessary to obtain appraisals to estimate the value of certain property and assets, such as real estate, antiques, or a business owned by the deceased. Furthermore, some people opt to retain an accountant to avoid any potential issues related to financial mismanagement.
The personal representative’s commissions and attorney fees should also be accounted for when planning for probate costs. According to Section 11.48.210 of the Revised Code of Washington, the compensation that a personal representative may receive depends on whether the deceased accounted for these costs in their Will and the amount of work they perform on behalf of the estate. There is no set hourly rate for personal representative compensation. Rather, the court will assess the work and compensate based on what they determine is reasonable. Similarly, attorney’s fees are also paid for by the estate depending on the services completed.
The Differences Between Testate and Intestate Probate
The legal process that occurs after a person passes away depends largely on whether or not they died with a Will. If they did have a valid Will at the time of their death, they are said to have died testate. On the other hand, if they passed away without a will, they are said to have died intestate. The differences between testate and intestate probate are substantial, so it is imperative to understand the implications of each form.
In the state of Washington, the distribution of assets in intestate probate depends primarily on the family status of the deceased. Intestate distribution varies depending on whether the person was married, had children, or parents and siblings to inherit their estate. If a person died intestate and was unmarried, their entire estate will be inherited by their children. If they did not have children, the estate will be inherited by their parents. If a person died intestate and they were married, their spouse will receive all community property and half of all separate property owned by the deceased. Any children will inherit the remaining half. More detailed information regarding intestate distribution can be found within Section 11.04.015 of the Revised Code of Washington or by speaking with a knowledgeable probate attorney at Baxter Legal Services.
Testate probate is much more straightforward, considering the deceased will have established a Will to name specific beneficiaries. In these situations, all property and assets will be distributed based on the provisions of the Will. This is generally preferable for most individuals, as it provides the power to specify exactly how property will be passed down. This option is not available when a person dies intestate.
To avoid intestate probate, it is necessary to establish a comprehensive estate plan that includes documents such as a Will and a Trust, depending on your objectives and unique estate.
When Does Probate Happen?
Washington law does not require probate, regardless of whether a person died with or without a Will. As a discretionary proceeding, some loved ones choose to utilize probate to distribute the estate. The most common reasons for filing a probate proceeding in Washington state include:
- The deceased had real property titled in their own name.
- The deceased had personal property titled in their own name that exceeds a value of $100,000.
- The Will is being contested
- In some cases, if the deceased owned real estate in another state
In many cases, probate is utilized because someone wants to use the process to accomplish a legal task or exercise a claim. Regardless, it is still important to realize that even if probate is being used, the Will of the deceased person still must be filed immediately following their death.
Why Should You Consider Hiring a Probate Lawyer?
Regardless of whether a person died intestate or testate, probate is a legally complex process. Many people find that hiring a probate lawyer helps immensely to expedite the process and avoid potential complications that may occur. Probate lawyers have the skill and expertise necessary to ensure that the probate process
To determine whether or not hiring a probate attorney may be necessary, it can be helpful to consider the following:
- Is it possible to transfer the deceased person’s assets outside of probate?
- Does the estate qualify for nonintervention administration in Washington?
- Are there any disputes among family members or loved ones, or do you anticipate that any disputes may arise?
- Does the estate contain complicated assets or valuable property?
- Is there sufficient money in the estate to address outstanding debts?
- Does the estate owe state or federal estate taxes?
If any of the aforementioned issues are applicable, seeking professional legal assistance may be beneficial. Hiring a probate lawyer is one of the ways to avoid costly mistakes and mitigate the likelihood of family disputes. Offering an unbiased perspective and wealth of knowledge, probate attorneys can ensure that the probate process is handled with utmost care.
While probate can quickly become a burdensome process, it does not need to be stressful. Having a legal professional to ensure that the process is handled according to state law, all requirements are met with diligence, and uphold your interests throughout can be incredibly valuable. At Baxter Legal Services, a large part of our practice is centered around providing compassionate legal services to families following the death of a loved one. To speak with an experienced attorney, consider scheduling a consultation with us at (425) 686-0574 today.