What is Probate?Posted: Updated:
(provided by Dick & Karen Sayre, Sayre & Sayre, p.s.)
Probate is the process by which the assets of a deceased person are transferred to the name of the person or persons named in their Last Will and Testament (Will). If a Will is present, a person is said to have died testate. If a Will has never been created, a person is said to have died intestate. If there is a Will, the original document must be presented to the Court so the judge can review the contents and affirm that it was properly drafted, signed and witnessed. In Washington State all Wills must be witnessed by two persons not related to the person signing the Will. These signatures make it a true and valid Will. However, for the Will to be accepted by the Court, the witnesses must make certain written representations concerning the age and capacity of the person signing the Will and their signatures must be verified by a notary.
Once the Court is assured that the Will is valid, the personal representative must be appointed. In older Wills that person might be called the Executor or Executrix. This is the person whose job it is to take the Will through the probate process. Before acting in this capacity, the Court requires the personal representative to sign an oath or declaration stating that they will follow the proper procedures and laws related to probate.
The personal representative has three jobs. The first is to determine what debts were owed by the deceased at the time of their death and make arrangements to satisfy those debts. This is done by going through the decedent's personal papers, checkbook, records and mail to uncover unpaid creditors. The personal representative may also publish notice in the newspaper to give notice to creditors who they have not discovered in other ways. After notice is given the creditors have four calendar months to make a claim for the amount owed by the decedent. If they do not file a claim in that period of time or if they fail to file their claim correctly they are barred from recovering from the estate. There are laws which permit the personal representative to go through the probate process and not give notice to creditors but, if they choose to proceed in this manner, they are personally liable to the creditors of the decedent for 24 months following the filing of the Will.
The second task the personal representative must perform is to create an inventory and appraisement. This means to determine what was owned by the decedent and what it's value was on the date of death. For every asset passing under the Will, a value must be determined and set down. The inventory and appraisement is not required to be filed with the Court but must be maintained in the attorney's file in the event a copy is requested by a creditor, an heir or the Internal Revenue Service.
Many assets are passed by means of the probate process but some are not, most notably life insurance proceeds, IRAs and retirement plan benefits, annuities and accounts held in joint tenancy with rights of survivorship or with the designation "pay on death" or "transfer on death". Assets owned by a living trust are also not usually subject to probate. Those assets not passing by means of the probate process are generally not listed on the inventory.
The last thing the personal representative must do before closing the estate is to distribute the remaining assets to the heirs named in the Will. Once the estate has been settled and completed the personal representative must notify the Court of the completion so that the Court can close the file. In the closing process, the heirs have the opportunity to question the personal representative about the fees paid to accountants, appraisers, the personal representative and the attorney. The heirs also have a right to receive an accounting detailing how the assets of the estate were handled by the personal representative during the probate process.
If there is no Will, the process of passing the estate to the heirs is called estate administration. The person named to handle the assets and pass them to the heirs is called the administrator and the process is much the same as a probate. Since no heirs are set down in a writing, they are determined by the law. Basically, if there is no Will the assets will go first to the spouse of the decedent; if none, to the children; if there are no children, then assets pass to the parents of the decedent; if the parents have predeceased the decedent then to the brothers and sisters and so on down the biological line. If this is not the distribution a person has in mind, it is critical they leave a Will or arrange for some other method to pass their estate.
(Sayer and Sayer is a Spokane-based law firm specializing in Elder Law issues)