Probate is a court process for distributing assets, transferring ownership of property, and settling debts.

In Washington, unlike some other states, the probate process is streamlined and relatively inexpensive. There are several advantages to filing a probate:

• It provides a method to conclusively resolve any claims by the decedent’s creditors
• The personal representative of the estate receives documents from the court formally authorizing them to manage the estate affairs
• Banks, title companies, insurers, and other agencies and institutions recognize and trust the probate process, which makes it much easier for the personal representative to do his or her job
• There is a clear procedure for resolving any disputes about the estate

When someone dies, his or her will must be filed or a probate started within 40 days. Once the will is filed and notice is provided to all heirs and beneficiaries, individuals have four months to challenge the will. If the will is not challenged, its terms are given effect, costs and debts are paid, and the remainder of the estate is distributed as the decedent directed.

An estate can be probated regardless whether the decedent had a will. As part of the probate process, a personal representative is appointed to wind up the decedent’s affairs. If the decedent had a will, the personal representative must carry out the terms of the will. If the decedent did not have a will, the personal representative determines who is entitled to receive the estate’s assets under the laws of the State of Washington.

The personal representative will first identify and collect estate assets, prepare an inventory of those assets, identify and notify creditors, and file the decedent’s final tax return, if necessary. Most creditors generally have four months after notice and publication to file claims against the estate. If they fail to file claims within this four-month period, their claims might be barred by law.

Not all estates need to be probated. Some people manage their estates with a revocable living trust or community property agreement. When properly executed and maintained, these documents may eliminate the need for probate. For estates that hold no real property and have less than $100,000 in assets, a “small estate affidavit” may be a better option than a full probate. Assets with designated beneficiaries (such as life insurance, IRAs, and 401Ks, payable-on-death bank and brokerage accounts, and real property subject to transfer on death deeds) also transfer without the need for a probate.

You may have specific, worthy reasons to avoid probate for your estate. Again, however, avoiding probate for its own sake is not necessary in Washington, and your quest to do so may have unintended consequences.

If you are acting as an executor, administrator, personal representative, or trustee, then you are acting as a fiduciary.

As a fiduciary, you may have obligations to the court, estate beneficiaries, and to creditors. You must take great care to document all of your activity as a fiduciary so that you can account to those individuals or entities interested in the estate or trust.

We have advised numerous fiduciaries in their roles and would be happy to assist you in this important role. Please contact us for a consultation, and we will provide you with insight into what your duties and responsibilities are, and the ways that we can assist you.

Contact us to schedule a consult with an experienced estate planning attorney.