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The Process of Probate

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A Step-by-Step Guide to the Probate Process

Probate is the legal process through which property and other assets pass from you to your dependents after you die (thanks Google). When done properly, the beneficiaries of the estate can rest easy knowing that the decedent’s last wishes were honored, state law was followed, and that the potential for future claims against the estate and executor have been curtailed.

For a decedent with a clear and concise estate plan, the administration of the estate can often be seamlessly directed with few decisions subject to discretion or debate. However, even the most sophisticated among us have left gaps in our estate plan resulting in more challenges in estate administration. This is completely normal, not uncommon, but exactly why probate is so important.

We regularly help our clients work through both simple and complex estate administration. Below is summary of the typical steps we’ll take together:

The Six Steps in Probate

  • Step One: We obtain all the relevant information from you regarding the decedent and his or her estate planning documents and assets.

  • Step Two: We file a petition with the court and the court appoints the appropriate individual as the Personal Representative or Administrator of the Estate. In some cases, the court supervises this person’s administration activities, and in other cases this person is entitled to administer the estate without probate court supervision. 

  • Step Three: We provide notice of the estate administration to heirs, beneficiaries, and creditors. The legal process also requires us to publish notice in a newspaper.

  • Step Four: We wait 4 months for any claims against the estate. During that time, we work with you to create an inventory of the assets of the estate and take steps to ensure these assets are preserved and maintained during the probate process.

  • Step Five: After any claims against the estate are resolved, you distribute all of the assets of the estate in accordance with the Will or the laws intestate, (that is, if Decedent had no Will). These laws simply set forth who gets the Decedent’s assets if he or she passes without a Will. Of note, the entire probate process is basically the same in instances where no Will exists.

  • Step Six: We close the Estate. Sometimes, this merely requires the filing of documentation with the Court, and sometimes we need to ask the Court’s approval to close the estate.

Best of all, you will not have to learn these laws or procedures. That’s our job. We’ll do all the paperwork, prepare all the legal documents, and guide you through the probate process step by step. During this time, we want you to focus on doing the important work of grieving and caring for the people around you who have also lost a loved one.

Of course, there can be many nuances to this process based on the unique circumstances of each case, but the framework for estate administration remains by and large the same.  In addition to what is laid out above, it is important to understand some of the basic concepts relevant to probate:

Non-probate Assets.

You may have heard there are some assets of the estate that are not subject to probate and which pass outside of the probate process altogether. These assets are referred to as non-probate assets, and typically include the decedent’s investment accounts, life insurance, and assets held in trust. These non-probate assets are often gifted via transfer on death designations and are transferred outside of probate directly to the beneficiaries named per the applicable designation. While these assets pass directly to the named beneficiaries outside of the probate process, they will often be included in calculating the gross estate for estate tax purposes and could be subject to claims against the estate.

Estate Tax. 

The dreaded estate tax is top-of-mind for most when preparing their estate planning documents, and certainly becomes even more relevant when administering a decedent’s estate. Any property transferred at death is subject to both Federal Estate Tax and Washington State Estate Tax. However, these taxes only apply to estates over a certain size of the respective 2019 exemption thresholds as noted below:

  • Federal Estate Tax threshold is $11.4 Million, and the Washington State Estate Tax threshold is nearly $2.2 Million

While we do not provide tax advice, we will help you determine whether there is a taxable estate and outline the next steps.

Community Property Agreements and Probate.

When our grandparents or parents lose their spouses, the probate process can be avoided if the parties have a Community Property Agreement (“CPA”) in place.  Pursuant to Washington State Law, the disposition of the decedent’s interest in community property occurs by operation of law if the parties have a CPA. As a result, typically no probate action is required. Nevertheless, the surviving spouse must still take certain steps to ensure proper transfer of the decedent’s assets, and depending on the language of the CPA, separate action may be required for disposition of separate property. If this is the situation you find yourself in, we will prepare the necessary documentation and make sure all appropriate steps are taken.

While there are many nuances to the probate process, please know you can rely on our experience and common sense to help facilitate and complete the process with the decedent(s) and your best interests in mind.