Olympia family law attorney
Family law, criminal law, estate planning, and more.
Lawyer.jpg

Blog

What is Probate?

Boy, do we get this question a lot.

Probate is the process by which legal title of property is transferred from the decedent to his/her beneficiaries. As the old blues song says, “ I’ve seen bad and I’ve seen worse, but I ain’t never seen no U-Haul behind a hearse.” Since you can't take it with you, the court determines who gets it.

To transfer any titled asset, the person transferring the asset needs to sign off on the transfer. The problem is, when someone dies they are no longer there to sign off on their titled assets to transfer them to their beneficiaries or heirs. This is the main reason for a probate - for the court to authorize someone to sign for the decedent and provide for an orderly transfer of the assets. Another primary reason for a probate proceeding is to allow creditors of the decedent to make claims against the estate for money they are owed and receive payment, and to provide a time by which creditors are cut off if they don’t make a claim.

If a person dies with a will - or "testate" - the probate court determines if the will is valid, hears any objections to the Will, and orders that creditors be paid. The court will also appoint the personal representative named in the will to administer the terms of the will. The court supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of the will. If a person dies without a will - or "intestate" - the probate court still appoints a personal representative to receive all claims against the estate, pay creditors and then distribute all remaining property in accordance with the laws of the state. The major difference between dying testate and dying intestate is that in a testate estate, the wishes of the decedent control as to the disposition of estate assets, whereas in an intestate estate the assets are distributed according to state law.

In Washington, the cost of probate is generally the cost of filing fees, service, and attorney fees, together with any estate taxes that may be due. Washington is generally considered a “best buy” state when it comes to probate; the costs of probate in Washington aren’t nearly as bad as they are in many states. The personal representative has many tasks in even the most routine probate.

They include:

  1. Proving in court that a deceased person's will is valid;

  2. Publishing a death notice in the local newspaper to give notice of the deathand probate;

  3. Identifying, appraising, and inventorying the deceased person's property;

  4. Paying off creditors, taxes, and cost of administration; and

  5. Distributing the remaining property as the will (or state law, if there's no will) directs.

As in every legal proceeding, probate involves a stack paperwork and court appearances by lawyers. The lawyers and court fees are generally fronted by the personal representative, who is then reimbursed by the estate.

Some property doesn’t have to go through probate. For example, property as joint tenants with right of survivorship (JTWROS) goes automatically to the surviving joint tenant. While this is convenient, holding property as a joint tenant with someone has its own problems, and should not be done with out first conferring with counsel to determine if it makes sense in your case. Also, life insurance or retirement beneficiary-designated proceeds pass to the designated beneficiaries outside of probate. Finally, assets held in a living trust will also pass outside of probate. If you are considering using any of these methods to avoid probate, please contact us to discuss the advantages and disadvantages in your specific case.

In some cases, there are also some short-cut methods to transfer title, such as an adjudication of testacy or an affidavit of non-probate. To see if these methods apply in your case, please contact us.

If you are faced with the death of a loved one and have a will to probate, or if you just have questions regarding the probate process, please feel free to contact us.

Caleb Morgan