Probate

The process of distributing an estate pursuant to a will

Administration

The process of distributing an estate pursuant to intestacy laws

Decedent

This is the term we use to describe the person who has passed away.

Estate

Estate refers to the property and assets of the decedent.

Testacy vs. Intestacy

Intestacy is when the person died without making a valid last will and testament. (Intestate)

Testacy is when the person died after having made a valid last will and testament. (Testate)

Property

Anything that may be the subject of ownership and is real or personal property. Examples include money, stocks, bonds, precious metals, vehicles, jewelry, art, curios, tools, clothes.

Probate vs. Non-Probate assets

Probate assets are those that are disposed of through the probate process. Examples include personal property, houses, vehicles, and bank accounts owned solely by the decedent.

Non-Probate assets are those that are disposed of outside of the probate process. These types of assets typically have a named beneficiary to whom the asset is distributed after the decedent’s death. Examples of non-probate assets include named insurance proceeds, assets previously assigned to a trust, or property owned as joint tenants with the right of survivorship (JWTROS).

Heirs, beneficiaries, and Issue, and Interested Parties

“Heirs” are those persons who are entitled to inherit the real and personal property of a decedent under intestacy laws. Examples of potential heirs include surviving spouses, children, parents, and siblings.

“Beneficiary”, in the case of a will, is a person named to inherit under a will. Beneficiaries may also be a person designated under an insurance policy, bank account, or even an investment account.

“Issue” means all the lineal descendants of an individual. An adopted individual is considered a lineal descendant of each of his or her adoptive parents and of all individuals with regard to which each adoptive parent is a lineal descendant. A child conceived prior to the death of a parent but born after the death of the deceased parent is considered to be the surviving issue of the deceased parent for purposes of this title.

“Interested Parties” are anyone who has an interest in the estate. In addition to family members, beneficiaries and heirs, this includes creditors, debtors, and potential litigants.

Jurisdiction

Jurisdiction refers to the specific court that has the authority to rule in a particular matter.

Personal Representative (executor)

Often referred to in other states as the executor or administrator, in Washington, the person tasked with the administration of a decedent’s estate is called the Personal Representative. The personal representative is appointed by the probate court and must act fairly, without bias or favoritism, in the administration of the estate. The personal representative has the power of the law to secure the property of the estate, and distribute it either in accordance with the will, or with intestacy law with the approval of the court.

Fiduciary

A fiduciary is a person who is acting essentially as a guardian of property for another person. In probate, the personal representative acts as a fiduciary for the estate, its property and interests. Acting as a fiduciary creates the legal obligation for the personal representative to act in the best interest of all interested parties, and may not put one party’s interest ahead of any others. A personal representative, acting in a fiduciary capacity, is prohibited from self-dealing.

Perjury

Perjury is the crime of making an untruthful declaration under oath. In probate this may become an issue if the personal representative signs a document stating he or she completed a step but, either, did not complete it, or did not complete it at the time stated.

In probate, this event may occur, inadvertently, when a personal representative signs a document improperly. For example, when a personal representative serves a document on an interested party, he files a “Declaration of Mailing” swearing to the truth of when it was mailed.  If the personal representative signs the declaration on Monday, stating that notices were mailed out, but does not mail the notices until Wednesday, the personal representative is guilty of perjury.