Top FAQ With Answers From A PS Probate Lawyer
Frequently Asked Questions
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What is “Probate”
Probate is the legal process of transferring the property of a deceased person to his or her heirs. It is overseen by the Superior Court of Washington State.
Don’t I want to avoid Probate?
Washington State’s probate process is simple and inexpensive compared to most other states. It is an economical and efficient method for transferring property from a deceased person to the heirs.
How does a typical Probate work?
Typically the person named as Personal Representative (Executor) in the Will petitions the Court to appoint themselves to manage the probate process. The Executor is responsible for identifying all the estate’s assets, paying the bills, finding the deceased’s heirs, notifying potential creditors of the estate, and finally distributing the estate’s assets to the heirs. At the conclusion of the Probate, the Court discharges the Executor. Usually no one is required to actually go to the Courthouse.
How much will a Probate cost?
Unlike many states, Washington State probate lawyers are NOT permitted to base their fee on a percentage of the estate’s value, which usually means lower attorney fees. We charge Attorney fees on an hourly basis. The costs of probate vary, depending on the size and nature of the estate. A Will helps control the probate costs. Planning ahead by doing a complete estate plan will lower probate costs.
How long will a Probate take?
The time required to complete a probate varies depending on the specific factors involved. Four months is the minimum time allowed for Creditors to make a claim. If an estate is complicated with estate taxes owing, it can take more than a year.
How do I know if I need to start a Probate?
When someone dies, the person named as Personal Representative (Executor) in the Will hires a probate lawyer in Bellevue and starts the probate. If there is no Will, an heir usually hires the attorney to start the probate. An experienced probate attorney will help you determine if you need to start a probate and, if so, will prepare the necessary documents. Even if you do not start a probate, you must file the original Will with the Court for safekeeping.
What is the difference between an Executor, Personal Representative and Administrator?
“Personal Representative” is the current term used instead of the old terms “Executor” (a man) or “Executrix” (a woman). Regardless of which term is used, this is the person responsible for administering the estate during Probate. An Administrator is a person appointed by a court to serve as a personal representative for a person who died intestate (without a valid will) or if the executor named in the will cannot serve.
Can I start a Probate if there is no Will?
Yes, an estate can be probated with or without a Will.
What do “testate” and “intestate” mean?
To die “testate” means that you had a valid Will at the time of your death. To die “intestate” means you either did not have a Will at the time of your death, or the Will was not valid.
Can’t I use a Power of Attorney instead of starting a Probate?
No. You cannot use a Power of Attorney after the person dies. All Powers of Attorney become invalid at the time of the Principal’s death. The Principal is the person who signed the Power of Attorney.
If I have a Community Property Agreement, will my estate need to go through Probate?
Maybe. If your Community Property Agreement has some special language in it, and if your spouse survives you, assets could pass to the surviving spouse without probate. However, you might want to probate your estate even if you have a Community Property Agreement. After looking at your Community Property Agreement and analyzing your situation, a probate attorney will advise you whether probate would be a good idea.
I am the beneficiary of an estate. What should I do if the Personal Representative is taking a long time to give me my inheritance, or is not communicating with me?
A Personal Representative has a “fiduciary duty” to act in the best interests of the estate and ALL of the heirs/beneficiaries. A beneficiary can file a “Request for Special Notice” with the court which then obligates the Personal Representative to advise that beneficiary of the actions that he/she takes on behalf of the estate, such as: selling real estate; distributing property; paying legal fees, etc. A Personal Representative is required to conduct an inventory and appraisal of all estate assets within three months of the commencement of the probate. An heir may request in writing a copy of that inventory and appraisal, and the Personal Representative must then provide it to the heir within ten days of his/her request. A Personal Representative has discretion as to the timing of distributions to heirs, and must settle all debts of the estate — including taxes — prior to the final distribution to heirs.
Often a Personal Representative may need to sell real estate of the deceased, and there may be delays due to economic conditions and slow-downs in the housing market. However, the Personal Representative continues to owe an equal duty to all heirs of the estate, and if he/she is refusing to communicate with an heir, then the heir has the right to seek court intervention. A court has the authority to order a Personal Representative to act, and may remove a Personal Representative if he/she fails in exercising his/her duties. For more detail, see the section on TEDRA below.
What does “TEDRA” mean?
TEDRA is the Trusts and Estates Dispute Resolution Act of Washington. This statute gives the court very broad authority to resolve trust and estate disputes in an expedited and efficient manner. An interested party may file a TEDRA petition with the court identifying the disputes and seeking relief. The court may then resolve some or all of the issues at the initial hearing; order mediation or arbitration; or set the matter for trial. Mediation and arbitration are forms of Alternate Dispute Resolution, and are “alternatives” to trial. In mediation, the parties negotiate toward a resolution with the assistance of a trained mediator. In arbitration, the parties submit their facts and argument to an arbitrator who then issues a decision as to the resolution of the disputed issues. If a matter is set for trial under TEDRA, it is given an expedited schedule.
My mom owned property with my sister as joint tenancy. What is joint tenancy mean?
Joint tenancy is the joint ownership of property by two or more co-owners in which each co-owner owns an undivided portion of the property. In your case, on the death of your mother, her interest automatically passes to the surviving joint tenant, your sister.
Administrator: A person appointed by a court to serve as a personal representative for a person who died intestate (without a valid will) or if the executor named in the will cannot serve.
Community Property: In certain states all property acquired during the marriage, except for inheritances or gifts received during the marriage by either marital partner. Each spouse has a one-half ownership interest in community property.
Deed: A document by which title to property is transferred from one party to another.
Estate Administration: The process in which a decedent’s personal representative settles the affairs of the decedent’s estate (collects assets, pays debts and taxes, and distributes the remaining assets to hers; the process is usually overseen by a probate court.
Estate Planning: Making arrangements, during a person’s lifetime, for the transfer of property to others on the person’s death. Estate planning often involves executing a will or establishing a trust fund to provide for others, such as a spouse or children, on one’s death.
Executor: A person appointed by a testator to serve as a personal representative on the testator’s death.
Fiduciary Relationship: A relationship involving a high degree of trust and confidence.
Intestacy Laws: State statutes that specify how property will be distributed when a person dies intestate (without a valid will).
Intestate: The state of having died without a valid will.
Joint Tenancy: The joint ownership of property by two or more co-owners in which each co-owner owns an undivided portion of the property. On the death of one of the joint tenants, his or her interest automatically passes to the surviving joint tenant or tenants.
Marital Property: All property acquired during the course of a marriage, apart from inheritances and gifts made to one or the other of the spouses.
Probate: The process of “proving” the validity of a will and ensuring that the instructions in a valid will are carried out, including settling matters pertaining to the administration of a decedent’s estate and guardianship of a decedent’s minor children.
Probate Court: A court that handles proceedings relating to wills and the settlement of deceased persons’ estates; usually a county court.
Separate Property: Property that a spouse owned before the marriage, plus inheritances and gifts acquired by the spouse during the marriage.
Tenancy in Common: A form of co-ownership of property in which each party owns an undivided interest that passes to his or her heirs at death.
Testamentary Trust: A trust that is created by will and that does not take effect until the death of the testator.
Testate: The condition of having died with a valid will.
Testator: One who makes a valid will.
Trust: An arrangement in which title to property is held by one person (a trustee) for the benefit of another (a beneficiary).
Will: A document directing how and to who the maker’s property and obligations are to be transferred on his or her death.