Attorney James Jones: [00:00:00] Are you dreading the probate process of Washington state? It’s a complex journey that can feel overwhelming with potential pitfalls that could delay your loved one’s estate or lead to costly disputes. But don’t worry, you don’t have to navigate it alone. Join me in this episode of Legacy Talk to Uncover the critical steps to manage Washington’s probate process effectively.
Avoid mistakes and gain the confidence you need to settle in a state properly.
You are listening to the legacy talk podcast hosted by James A. Jones, attorney at law and founder of sound legacy law, PLLC in Tacoma. Attorney Jones is here to talk about how to best protect your family assets and well, pulling stories from his more than 20 years of helping families and business owners protect their assets, create their estate plans, preserve their wealth and plan for the future.
Nobody wants to think about estate planning, but life has a way of sneaking up on you and. And at any moment, [00:01:00] something unexpected could happen that will leave you regretting not having acted sooner. So join attorney James A. Jones in the Legacy Talk podcast and together learn how to plan for your future today and have peace of mind tomorrow.
Attorney James Jones: Welcome to Legacy Talk. I am your host, James Jones. On today’s episode, we are talking about Probate 101 in Washington State, a step-by-step guide, and I’m doing this episode today because you know I have a lot of clients we do a lot of probates here in Washington, and it’s just such a common thing that people worry about that I thought we’d do a one-on-one, like, let’s do over the basics.
Let’s talk about this process and let’s talk about what needs to be done so that you don’t have any problems. Right? There’s just so many problems. I get clients all the [00:02:00] time where they try to start a probate on their own, and then it turns out that. They didn’t realize they had to do certain notices or they had to publish things in in the newspaper. They have to go to court potentially. Right? And so let’s just talk about things simply probate wise and see where we go. So we’ll start with this. What is probate like, James, what are you talking about? What is probate? I’ve heard this word. I know it’s a bad thing, or I’ve heard it’s a bad thing. What is it?
So probate is basically a court supervised process in order to administer someone’s estate. Okay? If there’s a will, it validates the will, if there are debts, it helps pay debts. If there are assets, that helps distribute assets. There’s almost always assets. Okay? And it’s not something that’s always required, but it is an often, oftentimes it is required, okay? There’s lots of cases where probate is required, which we’ll talk about later.
[00:03:00] Washington is not the worst probate state in the world or country. There’s many states worse, like California is worse. There’s states in the east that are worse, right? Okay. Washington has something called a non-intervention probate, which means that once you’re appointed by the court, you can handle most things without further oversight of the court.
You just have to sort of check in at the end. Okay? So that reduces court time and costs for lawyers. So that’s a positive, okay.
So let’s think about this scenario. Okay? If a family has a $200,000 house, that’s gonna have to go through probate, right? Without a will, or even if there is a will, that’s going to have to go through probate. All real estate that’s in a deceased person’s name has to go through probate, and I’m gonna back up here ’cause probate we talked about is paying debts, dealing with the will, distributing assets. But really probate is a title clearing process, right? We wanna make [00:04:00] sure that someone who is deceased, who’s died, can’t sign their name anymore, and so they have to go to court to be a appointed by the court. To become a, something called a personal representative or an executor, and that’s probate, right?
Giving, getting authority from the court or having a court give you authority to make decisions and transfers and distributions from someone’s estate. Okay, so when do we have to do probate? When is probate required in Washington? And so there’s certain triggers. Okay. Typically, like I briefly mentioned before, if you have real estate and the house is only titled in your name or the deceased person’s name and it doesn’t have a joint tenant with right of survivorship, designation or a transfer on death or anything like that. That real estate has to go through probate, okay?
Attorney James Jones: Sometimes personal property that exceeds a certain dollar amount, which is a hundred thousand [00:05:00] dollars and doesn’t have beneficiary designations. This is like bank accounts, vehicles. If it’s over a hundred thousand dollars, you’re probably have to go going through probate, okay. Unless there’s beneficiaries.
And then another reason for probate is if there’s a lot of errors that are causing problems or there’s creditors causing problems, and you need the court to sort of step in and kind of give you the authority and give you the you know, judicial backing power, I guess, to resolve these things. You sometimes wanna do a probate in that situation.
The exceptions to probate are also available, and there are some, so if the estate is under a hundred thousand dollars, like if you have a bank account and cars that are worth less than a hundred thousand dollars, you can do something called a small estate affidavit. Okay. And that has to be after a waiting period.
It’s a 40 day waiting period. You can do that. Okay. If you’re under a hundred thousand dollars. Things that have beneficiary designations, like a 401(k) life [00:06:00] insurance bank accounts, things that have beneficiary designations, don’t go through probate or real estate that’s held joint tenant with right of survivorship.
That doesn’t have to go through probate. And also if you have something called a revocable living trust, that asset doesn’t have to go through probate. So if you have your assets in trust or revocable trust, or any kind of trust, really that asset doesn’t have to go through probate because the trust provides the authority to the executor or trustee of that trust, okay? Without getting it from the court. In washington also, you can have something called a community property agreement, which works for married couples only or domestic partnerships. But those agreements basically say when one of the spouses die, the assets that are community are immediately vested in the name of the surviving spouse.
So they don’t have to go through that court process. Okay, so here’s a scenario. A single parent leaves $50,000 with a payable on death designation and $150,000 [00:07:00] house in their name only. Okay, so what happens? The bank account with a payable on death designation avoids probate, but the house, because that’s in the name of the parent, only has to go through probate.
Okay? So what you wanna do on your own side, right? This is if you’re thinking about doing your estate plan, you wanna review your titles to your assets and how you have beneficiary designations. I’m not saying you want to do all your real estate with joint tenant with writer of Survivorship. I would not say that because there’s other reasons and I’ve had other episodes about this, where we don’t wanna necessarily name our kid the beneficiary or name our kid on the house with us.
’cause that causes other problems. There’s other episodes about that on this podcast. So you can, there’s other avoiding probate episodes, so check one of those ones out. I can’t tell you exactly what they’re right now. But if you look on my podcast, you’ll see the other episodes. So you don’t always wanna put your kid on their house, okay?
So but if you do [00:08:00] wanna do designations of beneficiaries or do payable on death, or transfer on death, designations of bank accounts and investment accounts, those are pretty easy, easy to do. Okay? So James, what is the process for probate? What is the process like if you wanted to try to do this yourself?
You could potentially, there’s a certain situations you can without a lawyer, one of which is you have a will and you are named in the will is the executor, the other of which is you are the surviving spouse. Other than that, it’s difficult and almost impossible to do a probate without an attorney.
If there is a will. Okay we’ll say that you’re not gonna do a probate without a will by yourself. Okay? Let’s just say that’s how we’re gonna do this. If there is a will, the first step is you file the will with the court. Okay?
If you’re the executor named in the will to manage the estate, you file the will, okay? And petition the court, [00:09:00] you file a petition to get appointed by the court. Okay? That petition requests that the court appoint you as personal representative and get something called letters testamentary. Those are letters that you get when there is a will they’re called letters of administration if there’s no will, okay? And those letters give the you as a personal representative authority to act okay to deal with the estate. Whatever needs to be done, you know, under the will or asset wise, you can do it with those letters. They’re your magical letters, I say, and in most cases, you get something called non-intervention powers.
And those non-intervention powers allow you to be independent from the court for most things, right? They allow you to sell the house, they allow you to deal with the bank, distribute assets, pay bills, all that stuff, right. Most cases are non-intervention cases. In Washington, sometimes there’s, it’s very rare, like I’ve been doing this 23 years I think, and I’ve had one or two maybe that didn’t get non-intervention powers right [00:10:00] away.
I just had one recently actually, which was really weird. The commissioner appointed my client commissioners, like a judge. They appointed my client as executor, but they didn’t give him inter non intervention powers. They made it with full intervention because there was a question as to, there wasn’t a will for one, and there was a question as to whether there were other heirs that should be given notice on this, which there weren’t.
And so we had to revise that motion. We had to basically have that order changed through appeal basically. And we finally got him his non-intervention powers. But it was weird. It was weird. Anyway, so that does happen sometimes, very rarely, but does happen.
Step three in this probate process is to notify the heirs of the estate. That’s the beneficiaries. That’s, you know, natural beneficiaries typically, and creditors. The personal representative must notify these heirs and beneficiaries within a certain period of time. And creditors typically have notice published in the newspaper and [00:11:00] often can receive direct notice. If you know who these creditors are, you should give them direct notice, okay?
Creditors have four months to file claims if notified, okay? Whether it’s through publication or direct notice. If you don’t notify them, then they have to wait. They have two years to make their claim, so you wanna notify creditors, okay? Step four is to inventory the estate. The person representative inventories assets and pays debts.
These are like medical bills, taxes, credit cards. Sometimes you have to file a tax return, sometimes you have to do an estate tax return. There’s no such thing as in an inheritance tax in Washington, but there is an estate tax, which has a very low threshold, which we’ve talked about a million times in this podcast. It’s about $2.1 million, okay? There’s also a federal state estate tax which is about $14 million exemption.
So that one we’re not worried about very much. The state one though, we’re worried, 2.1 million is not that much money, okay? [00:12:00] Next step would be to distribute the assets and close the estate. This is something that people that hire me. That may have tried to open an estate on their own, gets stuck, right?
It’s paying bills, it’s distributing assets, and it’s closing the estate. After the debts are paid, you’re typically supposed to distribute your assets, right, according to what the will says or what the law says, and there’s certain paperwork you have to file and if you file it correctly and give notice correctly.
Then the estate will close within a certain period of time. If there’s no objections, right? And so there’s a little bit of nuance to that. And I get a lot of people that say, well, I thought I did everything, but I didn’t transfer the house, or I didn’t file the final documents, the declaration of completion, or something like that.
And so they come to me and they look for our help, my firm’s help, okay.
So the thing that I think makes sense there is, you know, you just wanna make sure there’s, the other [00:13:00] thing that we don’t have in this list is you probably wanna do an accounting if there’s multiple errors. Be and say how much money came in, how much money went out, right? How much money each person is going to get.
You probably want to have that out so people can know what they’re getting and you don’t have to worry about them saying, well, did I really get everything? You don’t want ’em to worry about that, okay. So here’s the scenario. A couple’s estate includes a home, a house, and $80,000 in savings, okay? Their married, couple. The community property agreement transfers the house to the surviving spouse with no probate. But in this scenario, if the account is not in the surviving spouse’s name, they could try using the community property agreement, but that may or may not work at the bank you go to.
But they might need to do something called a small estate affidavit, which we mentioned before. So something like that, you wouldn’t need to necessarily hire an attorney for anything over a hundred thousand or if there’s real estate, you probably want to get an attorney to help you. It’s just easier.
It’s just easier. [00:14:00] We go to law school for your benefits, so you don’t have to, right, we don’t do this all the time, all day, and so it’s much easier. So here’s some questions. I thought, you know, let’s do some questions. These are common questions. Question number one. If I have a will, I don’t have to go through probate, right? Wrong. A will does not avoid probate. A will does not avoid probate, okay. I was just talking to my office manager, who’s my probate department leader, and she’s like, you gotta ask this question. A will does not avoid probate. Right? A will is the entry point to probate, right? The reason a will doesn’t avoid probate is because the will just nominates an executor.
The will says, Hey, I want my cousin Bob to be the executor of my estate, but it doesn’t give them any authority. It says, if you wanna use this thing, you gotta go to court, okay? To get authorized by the [00:15:00] judge, okay? That’s probate. If you don’t have a will to piggyback on that, if you don’t have a will, do you need to go through probate?
Maybe not, right? It all comes down to what kind of assets you had. If you don’t have a will and you have an estate less than a hundred thousand dollars, the answer is no. You don’t have to go through probate. But if you have an estate under a hundred thousand dollars, but a house as well in addition to your other, less than a hundred thousand dollars of assets, you do have to go through probate, okay? All right. Can I handle probate myself in Washington or do I need an attorney? Do it yourself probate in Washington is feasible. Like we said, you could do a small estate affidavit, that’s so much easier, but if you have to go through real probate, it’s so much better to do use an attorney, and if you are not the surviving spouse, and if you’re not the executor named in the will, you’re not gonna be able to open it yourself.
You’re gonna have to have an attorney to help you. Okay? What happens if I miss the 40 day deadline to file a will? [00:16:00] Everybody sometime somehow hears about, I’ve gotta have the will filed with the court within 40 days. That is a statute. There is a statute that says you’ve gotta file this will within 40 days.
If you miss that deadline, what happens? The answer to that is nothing. The problem is if you don’t file the will in 40 days or file for the probate in 40 days, then anybody can file the probate. So if there’s a will and you sit on it for two months or 41 days, and there’s a creditor out there that says, this per this estate owes me lots of money.
I wanna get that money. They could open a probate. Or if it’s a, you know, brother of an estate of a decedent, right? And this says the spouse doesn’t wanna file the will or waits. That brother can say, well, I’m gonna do it. They’re not doing it right. I actually just had a case where a client of mine we’ve been working with for several years with his mother, and his mother recently passed away, but his [00:17:00] mother’s brother filed a probate. With an old will that is, you know, no longer valid. It was revoked by a subsequent will, but anybody can file a will or a probate after 40 days, so you wanna do that, okay. How do you use a small estate affidavit? Okay. How can I use a small estate affidavit and avoid probate? I’ve already mentioned you have to be under a hundred thousand dollars in cumulative assets value, okay. And you have to wait 40 days for it to be effective. So if you are a legal successor, which means you’re like their kid, right?
Or there’s a will that says you’re the executor or you’re the beneficiary, then you could use a small estate, affidavit for an estate under a hundred thousand dollars. If you are not one of those people and you’re just some friend, that’s not gonna work. That’s not gonna work for you. You’d have to open probate, okay? Can a community property agreement help if I’m not married? No. Community property does not exist if you are not married, okay. Not legally. [00:18:00] There’s certain nuance to that, but simple, simply the answer to that is no, will leave it at that, okay? What if my sibling disputes the will during a probate?
What happens if someone disputes a will? During a probate? Well, one of the problems with probate is that it creates a venue for people to make disputes. It makes an automatic venue for people that are kind of not your friends to file stuff. So there can be disputes, right? If they dispute things and can prove it, then there might be issues, right?
It’s difficult to prove things that are kind of pie in the sky, like my mom didn’t want that will to have that, you know, to be that way. They wanted to say this, or their old will said this one shouldn’t be valid. Those things are difficult to prove. Very difficult. That doesn’t mean they can’t happen, okay?
So take that for what you will. So some key takeaways from today’s episode.
Washington’s probate process is not the [00:19:00] worst in the world, right? If you can get non-intervention powers, which in most cases you can use a small estate affidavit, but estate planning can minimize all this stuff. If you do estate beneficiaries, if you do a trust or other designations, which distribute assets. By operation of not law. This is not a how to avoid probate episode. It’s like, what do we do in probate episode? But if you wanted my advice, which maybe you do if you’re listening to this, I would avoid probate nine times outta 10, 10 times outta 10 in most cases if I could. There’s very, very limited scenarios where I think a probate is more efficient then using a revocable trust to distribute your assets. Okay. A revocable trust gives you full control and gives your successor trustee or executor full control to run your estate without any court intervention. And it’s also gonna be less likely to be contested.
[00:20:00] And so if you can stay outta court for almost anything, it’s a good idea, okay? So.
That’s pretty much it for today’s episode. Make sure you have to follow up next week where we’ll have a brand new episode topic to be determined. So keep your guesses coming. If you have an interesting topic that you’d want me to talk about, send me an email or put it in the comments and i’ll look for it.
I had like to thank you for listening to today’s episode of Legacy Talk. If you like today’s episode or would like to learn more, please like and subscribe for more great content. I’ve been your host, James Jones, to your legacy.
Thank you for listening to the Legacy Talk podcast by attorney James A. Jones. If you found today’s episode helpful, we ask that you like and follow us on all major platforms so you don’t miss out on the latest episode. If you have questions for Attorney Jones, reach out at info@joneslegacylaw.com or visit our website at jones [00:21:00] legacylawcom.
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