MATT PERKINS, ATTORNEY AT LAW
 5516 SEVENTEENTH AVENUE NORTHWEST
SEATTLE , WASHINGTON 98107



Probate in Washington

This page contains answers to some basic questions about the probate process in Washington.


What is Probate?

Probate is the legal process employed when winding up the affairs of someone who has died. Although the common belief is that the process is clumsy and expensive and should be avoided if at all possible, Washington state has a relatively straight-forward probate procedure and, in many cases, the process is neither difficult nor unduly expensive. Also, the process provides an opportunity to resolve issues such as whether the estate plan was the product of some unfair influence or manipulation by one ore more beneficiaries, 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.


Who initiates Probate, and how long does it take? What does it cost?

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.

Probate can be very simple or it can be very complicated. We have handled probates for as little as $1,000.00, but the more complex or contested probates will cost many times that amount.



What is involved in the 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. The filing fee is, as of Winter 2007, $200.00. 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" and in the percentages specified in RCW 11.04. 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" (where there is no 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:
       (1) 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;
       (2) potential and known creditors or people owed money by the decendent are notified and given similar opportunities;
       (3) the personal representative takes control of all assets and prepares an inventory of the estate;
       (4) the personal representative pays all legitimate debts and expenses;
       (5) the personal representative makes distributions of the estate according to the directions contained in the will; and
       (6) 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.


Is Probate always necessary?

"Small Estate" Procedure: Assets from an estate with a total value less than $100,000 may be transferred by affidavit without any probate.

RCW 11.62, Washington's "small estate" procedure, applies to estates valued at $100,000 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.

Non-Probate Assets: Apart form the Small Estate procedure noted immediately above, other non-probate mechanisms may allow the transfer of property held by third parties in the name of the deceased, e.g. bank accounts, investments, etc., but unless you take specific legal steps appropriate to your situation and which are beyond the scope of this discussion, these procedures or arrangements may not resolve issues relating to who his the correct recipient of that property and they may not resolve any potential claims which might be brought by persons claiming to be creditors of the deceased. If there are any possible issues along these lines, or any disagreement within the family as to what ought to be done, consultation with an attorney is highly recommended.

In some cases, the deceased may have had considerable property yet there may still be very little left in the way of "probate assets," meaning that there could be considerable real and personal property to distribute by other means but little of significant value which will pass under the terms of the will. This would occur if all or most of the property of the deceased was held in joint tenancy or joint accounts, was subject to a community property agreement, or was held in some other manner which makes it payable or deliverable upon death (such as an insurance policy or other investment with a designated beneficiary). Assets held in a living trust are also non-probate assets and therefore pass without need for a probate.

Other procedures: If there truly is very little which would be subject to probate, there may be alternate mechanisms for transferring the few items of value that remain. For example, a motor vehicle can be transferred to a surviving spouse or heir with an Affidavit of Inheritance (to do this, contact the Department of Licensing). As further example, wages up to $2,500 can be transferred with an affidavit of relationship. RCW 49.48.120. If there is a community property agreement, everything may be automatically transferred to the surviving spouse.


Do I need to file the will if there will be no Probate?

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. RCW 11.20.010 requires that the will be filed within 30 days of the date on which the person having custody of the will learns of the death of the deceased or, if the person who has the will is the named personal representative, they are to file it within 40 days of the date on which they learn of the death of the deceaed.