Opening

To probate or not to probate:

There are many reasons to engage in the probate or administration of an estate. The primary reason is to legally transfer ownership of estate assets. Such transfers concern real property and personal property. Property may include cash, bank accounts, investments, stocks, bonds, insurance proceeds, personal property, vehicles, and real estate.

Distributions of estate property may be made to creditors, heirs and beneficiaries of the estate. Creditors may include secured or unsecured creditors, private creditors or federal, state and local governments. In addition, the estate may be the plaintiff or defendant in a lawsuit.

Preliminary matters to keep in mind when deciding whether to probate an estate include:

Whether there is a valid will for the decedent;

The total value of the estate;

Whether real property is included in the estate;

Whether the estate is a potential or actual litigant in a lawsuit; and

Whether there are creditors of the estate.

Small estate affidavit: A potential alternative

The RCWs specify that, under certain circumstances, it may not be necessary to open the probate or administration of an estate.

RCW Chapter 11.62 governs small estates. Small estates are those that do not own any real property and are valued at less than $100,000.00, after liens and encumbrances are paid. To claim property from a small estate, a “successor” provides an affidavit and proof of death to any person that held property or money that properly belongs to the decedent’s estate. A successor, for the purposes of this chapter, is someone that has a right to take property under the decedent’s will or through intestacy law. The state and the Department of Social and Health Services may also be a successor, under certain circumstances. Look to RCW 11.62.005 and consult with your probate attorney for more information regarding potential successors to a small estate.

In order to successfully claim property via the small estate affidavit procedures, the successor must comply with all of the requirements in RCW 11.62.010. Requirements include that forty days have passed since the decedent’s death, that there has been no application or petition for appointment of a personal representative, that all debts and funeral expenses have already been paid, and that the successor give notice to all other successors of the decedent.

Probate

Assuming that the Small Estate Affidavit avenue is not available:

Probate v. Administration (Will v. no will) and testacy v. intestacy

The use of the terms “probate” versus “administration” of an estate depends on whether or not the decedent left a valid will.

Where the decedent left a valid will, the decedent is said to have died “Testate,” and the will is probated. In this case, the personal representative (executor) named in the will petitions the court to be appointed as the personal representative. This equates to the personal representative asking the court’s permission to take responsibility for the probate of the estate by way of the will. Once the court approves of the appointment of a personal representative, this individual is issued “letters testamentary” by the clerk of the court.

Where the decedent dies leaving no valid will, the estate is considered “Intestate.” In this is the case, the decedent’s estate is “administered.” Since, in the case of an intestate estate, there is no will to nominate a personal representative, Washington statues describe the priority interested parties have in terms of appointment. These are, generally, based on a candidate’s relationship to the decedent or the estate. Under RCW 11.28.120, preference is given first, to a surviving spouse, then, to a child, parent, sibling, grandchild, and nieces or nephews, in that order. If none of these relatives elect to seek appointment, additional persons may seek appointment. This includes creditors of the estate and/or potential litigants. Once a personal representative is appointed, that personal representative is granted letters of administration.

The following sections describe the probate process, including petitioning for appointment as personal representative of the estate.

Opening Probate- The Process

Register the Will

In most cases, a will is not filed until after the testator’s death. If it has not been filed when the testator dies, the person that has possession or control of the will must provide the will to the probate court OR to the person named as personal representative in such will, within thirty days of learning of the testator’s death. If the personal representative has possession of the will at the testator’s death, or the will is delivered to the personal representative, said personal representative must deliver the will to the probate court within forty days of learning of the testator’s death. RCW 11.20.010 governs the custody of wills.

Sometimes, a will is filed prior to the death of the testator. In these instances, RCW 11.12.265 controls. Under this law, any person who has possession or control of a will, who does not have knowledge of the testator’s death, may deliver the will to the court to file under seal. After filing, the will may be later withdrawn, or can be unsealed upon proof of death to the Court Clerk’s office.

Petition the Court to be Appointed as Personal Representative of the Estate.

Jurisdiction:

To initiate probate, the person seeking appointment as personal representative must apply (petition) to the correct court that handles probate matters in that state This is referred to as “jurisdiction.”

Probate may be opened in any state where the decedent resided or owned property.  In Washington state, probate may be opened in the Superior Court of any county by way of petition to the court. In the “Petition,” the interested person is asking a judge to “order” the Clerk of the Court to “issue letters” for the purposes of administering the estate.

Letter of Testacy (or Administration) grant the holder legal authority, as the “Personal Representative,” to act on behalf of the estate and all interested parties of the estate. It is important to remember that with this authority comes statutory legal duties and responsibilities. This means the personal representative must become knowledgeable in the pertinent laws governing probate in that state. Many personal representatives seek the advice of a knowledgeable attorney to help them correctly navigate the probate process.

Obtaining Letters of Testamentary (with a Will) 0r Letters of Administration (No Will)

What to Bring to Court:

The person seeking appointment (or their legal representative) must file:

1. A Petition Requesting an Order Establishing Probate and Appointing the Personal Representative. For example: Initial Petition (Solvent) | Initial Petition (Insolvent)
2. The decedent’s Will (if applicable),
3. A “Proposed Order” for the Court to sign
   Initial Order (Solvent) | Initial Order (Insolvent), and
4. The signed, “Oath of the personal representative.” Oath Document

Note- These documents are described in greater detail below

Helpful hint: Always bring at least one copy and the original of every document you plan to file with the court. This will save you time and copying costs at the court.

File the case: The first step is to go to the Court clerk’s office in the county you wish to establish probate. While every county does is a little differently, in general, the following applies. You file the Petition with the court and pay a “filing fee.” This amount varies in each jurisdiction but is, generally, about $250.00. Check online before going to court to find out terms of payment.

Helpful hint: Remember to ask the Court Clerk how much “letters” cost. You can pay for one or more sets when you pay the filing fee. This will save time later when you come back for your letters. Save the receipt!

Case Number: Once your case is filed, it will be assigned a “case number.” This number is included at the top of all court documents in what is called the “caption.” View a pleading tutorial. Take the time now to use the clerk’s stamp to put the case number on all your copies.

Present Petition: Once you have filed the case with court clerk, the next step is to present your petition and proposed order to a judge for the court’s considerations. In many jurisdictions, you can do this immediately in the “ex parte” courtroom. This is a dedicated courtroom that hears matters without a scheduling requirement.

Requirements / Qualifications of a personal representative

As described, previously, RCW 11.28.120 gives the order of preference for potential personal representatives, in the following order:

• Surviving spouse, or the person the decedent requested
• Child or children
• Father or mother
• Brothers or sisters
• Grandchildren
• Nieces or nephews
• Trustee, guardian, or power of attorney
• Beneficiaries or transferees of assets
• Director of revenue (in the case of escheats)
• Secretary of DSHS
• Creditors

RCW 11.36.010 describes individuals that are disqualified from serving as personal representative. With some exceptions, corporations, limited liability companies, limited liability partnerships, minors, persons of unsound mind, and persons who have been convicted of a felony or crime of moral turpitude, may not serve as personal representative.

The judge will review your paper work and may ask questions related to the estate including relationship to the decedent, potential heirs and whether the estate is solvent or insolvent.

Obtain the Order: Once the order is signed, the person seeking appointment is now the personal representative.

Present Oath and Obtain Letters: The personal representative must retrieve the order solvent / insolvent and return to the Clerk’s Office, submit their Oath and be issued either letters of administration or letters testamentary.

Helpful hint: In some jurisdictions, you must  have the letters prepared. In other counties, the clerk writes the letters. In every case, the clerk certifies the letters to make these official.

The Documents Necessary to Open Probate (in more detail)

Will (if applicable)

Before going to open probate, the person seeking appointment as personal representative should make copies of the decedent’s will. When opening probate, the court requires that the original will be filed. Copies may only be filed if the original will was destroyed (without the intent to revoke), or the original will cannot be located. If the original will can be found, all reasonable efforts to find the original must be taken before filing a copy. If the original was drafted by an attorney, contacting the attorney’s office may be a good start. The attorney may have kept the original in their files, or they can potentially authenticate a copy if the original cannot be found.

Petition to Establish Probate and Appoint Personal Representative

A person seeking to be appointed personal representative must first petition the court to open probate. A template of a petition for a testate estate can be found here, and a template for a petition to open an intestate estate can be found here.

Note: Depending on the facts and circumstance of the probate, substitutions or additions from these templates are sometimes necessary.

Testate appointment of Personal Representative: In the case of a testacy probate, where the decedent left a Will nominating a specific person as their personal representative, that nominee can petition the court and is often appointed without a hearing. If the person seeking appointment is nominated by the Will, the process is more similar to the intestate process described below.

Intestate appointment of Personal Representative: In the case of an intestate estate, where the decedent left no Will, the person seeking appointment must send notices to other persons, potentially eligible to act as personal representative. The priority given to each potential personal representative is given based on their relation to the decedent, and is governed by RCW 11.28.120,  as discussed above. If all other persons, potentially entitled to serve, consent to the appointment of the person petitioning, in writing, the court may appoint that person as personal representative without a hearing. Absent this consent, there will likely be a hearing in which all those entitled to serve may make a case as to why he or she should be appointed. The court then selects personal representative and probate proceeds accordingly.

Note: If you have received notice of hearing for appointment of a personal representative and wish to object it is advisable to, promptly, speak with an experienced estate attorney to assert your rights and protect you interests. Remember, most court proceedings are controlled by strict time requirements and deadlines- do not delay in responding to court notices!

Bond or No Bond?

A bond is sometimes required of a personal representative, by the court, to ensure that the personal representative complies with his or her duties. Typically, if the personal representative is nominated in a decedent’s will, or is a close family member of the decedent, the court will waive the bond requirement. This is especially the case when the decedent has indicated this preference for the personal representative’s appointment in their Will.

A bond serves as protection ensuring interested parties are protected in the event the Personal Representative misuses or embezzles estate resources. If the court decides a bond is required, it will indicate the amount on its order. Letters will not be issued until proof of bond is provided by the Personal Representative. Bonds can be secured from an insurance agent. Most times, the cost of the bond will be reimbursed from estate funds.

Nonintervention Powers

The court’s probate “intervention” status will determine how much freedom the personal representative possesses to administer the estate without court oversight. In a non-intervention probate, the court allows the personal representative to administer the estate with minimal court involvement. In a probate with intervention status, the court will oversee the probate much more closely.

Non-intervention powers may be granted to a personal representative regardless of whether the decedent left a will. The factors the court considers in determining whether to grant a personal representative non-intervention are enumerated in RCW 11.68.011. Primarily, the court will consider whether the will (if applicable) required intervention of the court, if the decedent’s estate was solvent, and who is petitioning to be appointed as personal representative. A party may petition for nonintervention powers, and a hearing will be held, at the time of appointment, or at any time after.

If a personal representative is granted nonintervention powers, he or she has broad powers to administer the estate. Under RCW 11.68.090, the personal representative may borrow against the estate, sell, mortgage, lease, or exchange estate property without order of the court, all without notice, approval, or confirmation. The requirements for closing an estate are also more relaxed for a personal representative with nonintervention powers, as explained in RCW Chapter 11.68. More information on closing can be found in the closing probate page of this website.

Solvency vs. Insolvency

Solvency means that the estate probate assets amount to more than estate debt.

Insolvency means the opposite and that there is more debt than resources.

When opening the estate, the Petition states whether the petitioner believes the estate is solvent or not. Shortly after appointment, the Personal representative is required complete an estate inventory to verify estate assets. If, at any time, the estate becomes insolvent, the Personal Representative must report this fact to the court and put interested parties on notice.

A personal representative’s duties in the case of an insolvent estate are laid out in RCW 11.68.080. The personal representative has ten days from the time that he or she learns that the estate may be insolvent to notify, in writing, heirs and unpaid creditors of the estate. This notice must also be filed with the court.

Following the notice of potential insolvency, the personal representative must petition the court to determine whether the court should reaffirm, rescind, or restrict the granted nonintervention powers, if applicable.

If it is later determined that the estate is solvent, the court will step in to determine which creditors are paid first. The order for the payment of debts, as described in RCW 11.76.110, is as follows:

1. Funeral expenses
2. Expenses of the last sickness
3. Wages due for labor performed within sixty days immediately preceding decedent’s death
4. Debts having preference by the laws of the United States
5. Taxes, or any debts or dues owing to the state
6. Judgments rendered against deceased upon real estate, and debts secured by mortgages
7. All other demands

Order Establishing Probate

Along with the petition to open probate and the will (if applicable) the personal representative should bring a proposed order to open probate. A template for an order opening a testate probate can be found here, and a template for an order opening an intestate probate can be found here. The judge will sign the order, and indicate whether the personal representative will be granted non-intervention powers, and whether the court will require a bond from the personal representative. After the judge signs the order, the personal representative files the order and presents it to the court clerk in order to receive either letters of administration or letters testamentary, and.

Oath of Personal Representative

After the court issues an order approving of the personal representative, the personal representative submits their signed oath, stating that he or she will complete the duties of the personal representative according to the law. A sample oath can be found here. The Court clerk accepts the Oath and produces Letters of Testacy/Administration.

Letters of Testacy/Administration

When the court opens probate and orders the appointment of the personal representative, the Clerk of the Court issues either Letters of Administration (if there is no will) or Letters Testamentary (if there is a will) to the personal representative. A template of Letters of Administration is located here. A template of Letters of Testacy is located here.

Letters of Administration/Testamentary certify the personal representative’s legal authority to administer the estate. It will be necessary for the personal representative to present these letters for tasks such as opening the estate account and taking possession of the decedent’s property or bank accounts.

Note: Some jurisdictions require the petitioner to draft and present these letters for the court’s use. In other jurisdictions, the Clerk provides their own letters template. Consult with the court where probate is opened to determine its preference.

Required notices after appointment as Personal Representative

During the course of probate, the personal representative is required to provide all proper notices in the manner and timing provided by statute. For example, as soon as the court appoints the personal representative and issues letters, the personal representative is required to provide notice to  all of the estate’s heirs, devisees, and legatees, and to any person that is entitled to receive a non-probate asset, that probate has been opened, and that a personal representative has been appointed. RCW 11.28.237. A template for this notice can be found here. After sending out these notices, the personal representative must sign an affidavit declaring that these were served and file the affidavit with the court. An example of this document is located here.

Note: Anytime the personal representative files and serves court documents, it is critical they file a declaration/affidavit of service with the appropriate document noted and the manner and persons served indicated.

In addition to giving notice to the decedent’s heirs and beneficiaries, the personal representative must mail notice to the Washington Department of Revenue, Taxpayer Account Administration (DOR). RCW 11.28.238 requires that that personal representative mail this notice, or he or she may be personally liable for taxes owed by the decedent.

The personal representative should prepare two copies of this document: one to mail to DOR, and one to file with the court. Click here for examples of both. The distinction between these two versions is critical.

The copy that is mailed to DOR must include the decedent’s social security number; the copy to be filed with the court must not must include the decedent’s social security number. The copy filed with the court becomes a public record. Identity thieves can still use a decedent’s social security number to steal the decedent’s identity after they have passed away, so protecting the decedent’s social security number is just as important after they have passed away. Just like the notice to beneficiaries, the personal representative must sign a declaration of mailing stating that notice was given to the DOR.