Is Probate Necessary?

Is Probate Required by Washington Law?
No

Washington state law does not require a probate proceeding to be filed following death, regardless of whether the Decedent died with or without a Will (i.e. testate or intestate, respectively).

Probate in Washington is entirely discretionary and only a few percentage of deaths in Washington result in a probate being filed.

In Washington, if a probate is filed, it is because someone wants it to be filed, NOT because the law requires it.

The most common reason for probate is that the Decedent died holding:

  • Any real property (e.g., land or house) titled in his or her own name, or
  • Personal property (usually a cash or securities account) titled in his or her own name whose value exceeds $100,000.

Washington state law, however, does require any last Will of a Washington resident decedent be filed promptly following death (within 40 days of death at most).

If Decedent died with a Will, then Decedent’s Will is required to be filed with the Clerk’s Office of the Superior Court of the Decedent’s resident county at death (e.g., King County Superior Court) regardless of whether or not Decedent’s estate will be probated.

Overview: Someone (the “Decedent”) has died and you believe something legal needs to be done as a result of the decedent’s death

1. Deal with Any Emergency Situation Requiring Official Authority Before a Personal Representative Can Be Appointed

This is unusual and arcane, but it is explained here (link to Appointing a Special Administrator).

2. File Decedent’s Will

As explained above, Washington state law requires any last Will of a Washington resident decedent be filed promptly following death (within 40 days of death at most). RCW 11.20.010

If Decedent died with a Will, then Decedent’s Will is required to be filed with the Clerk’s Office of the Superior Court of the Decedent’s resident county at death (e.g., King County Superior Court) regardless of whether or not Decedent’s estate will be probated. See Filing Decedent’s Will (link to Filing Decedent’s Will/Will Repository).

3. Marshal, Inventory, Categorize, and (if Decedent as Married at Death) Characterize All of Decedent’s Assets

Before a Decedent’s assets can be distributed to those who are entitled to them, you must first:

  • Discover all the assets Decedent owned at death. See Assets That Slip through the Cracks (link to Assets That Slip through the Cracks).
  • Take control over Decedent’s assets so that they will be protected for Decedent’s Heirs and Beneficiaries.
  • Inventory Decedent’s assets, at least informally.
  • Categorize each asset as either
    1. A probate asset, meaning that is transfer to Decedent’s Heirs and Beneficiaries may necessitate a probate proceeding, or
    2. A non-probate asset, meaning that its transfer may be made “outside of probate.”
      See Determining Decedent’s Probate Assets (link to Determining Decedent’s Probate Assets)
  • And, if Decedent was married at death, Characterize each asset as either separate property, community property, or quasi-community property, revealing the extent to which Decedent’s surviving spouse has any marital property interest in the asset. See Determining Decedent’s Surviving Spouse’s Marital Interest (link to Determining Decedent’s Surviving Spouse’s Marital Interest).

4. Distribute Decedent’s Assets to Those Entitled to Them & Re-title Those Titled in Decedent’s Name

The process of distributing and re-titling involves two different procedures, depending on the nature of the asset.

  • Decedent’s Probate Assets Pass to:
    1. Decedent’s Beneficiaries according to the terms of Decedent’s Will, or
    2. In the absence of a Will, Decedent’s Heirs according to the laws of intestate succession (i.e., inheritance).

Generally, Probate Assets are held in Decedent’s name at death.

If the Decedent has any probate assets, you will likely need to employ one or more formal or informal probate procedures for distributing them or changing title to them. This may or may not involve the Court, depending on your circumstances. See Section below, Possibilities for Avoiding a Probate.

  • The procedure for distribution and re-titling of Decedent’s Non-Probate Assets depend on the nature of the pertinent asset. See Administering Non-Probate Assets: assets that pass “outside of probate.” (link to Administering Non-Probate Assets)
    • Decedent’s Non-Probate Assets include all of Decedent’s other assets, such as those:
      • Held in Joint Tenancy form,
      • Subject to a Community Property Agreement between Decedent and his/her surviving spouse
      • Having death beneficiary designations, such as Payable-on-Death or Transferable-on-Death accounts, life insurance policies on Decedent’s life, IRAs, Keogh Plans, and other pension plans, or
      • Held by Decedent’s Living Trust.

5. Pay Decedent’s Debts, which can get a little complicated depending on the situation:

  • If a probate is filed, the task of paying Decedent’s debts and determining which of Decedent’s assets will be used to pay those falls on the Decedent’s Personal Representative.
  • If no probate is filed, then the takers of Decedent’s property will need to decide among themselves whether they wish to:
    1. Agree among themselves who will pay Decedent’s debts and pay them; or
    2. Select one person (a “Notice Agent”) to be responsible for determining which of Decedent’s assets will be used to pay Decedent’s debts, paying those debts, and allocating the charges for those payments among all of the takers.
  • If Decedent’s estate is insolvent, e. it has more debts than assets, then the estate will usually be left to Decedent’s creditors to fight over “who gets what.”

Decedent’s debts must be paid or otherwise provided for because decedent’s creditors are entitled to be paid and Decedent’s Heirs and Beneficiaries will want to know that whatever assets they receive are free from attachment and repossession by Decedent’s creditors.

Regardless of whether or not a probate is filed, those persons responsible for paying Decedent’s debts (i.e., the Personal Representative, the Notice Agent, or the takers themselves) will need to decide whether or not to follow Washington’s Creditor’s Claim Procedure, which, among other things, requires weekly publication of a Notice to Creditors in a legal newspaper for three successive weeks. See Creditor’s Claim Procedure (link to Creditor’s Claim Procedure – part of FAQ).

6. Begin a Probate for Other Reasons

Even though you may not need to file a probate to distribute or change title to Decedent’s assets or to pay Decedent’s debts, a probate may be necessary or desirable for other reasons.

The following two sections, Circumstances Necessitating Probate in Washington and Circumstances Necessitating Probate Elsewhere, describes what some of those other reasons might be.

Circumstances Necessitating Probate in Washington

1. Accessing Decedent’s Safe Deposit Box

If Decedent has no safe deposit box solely held in his/her name or if it contains no assets, then a probate is unnecessary so far. Go to #2, Distributing and Changing Title to Decedent’s Probate Assets, below.

This is the classic “Catch 22” situation:

  • You need Decedent’s Will in order to file Decedent’s probate, but
  • Decedent’s Will is in his/her safe deposit box, and
    • The safe deposit box is solely in Decedent’s name, and
    • The bank will not permit you to access Decedent’s safe deposit box without a certified copy of your Letters (more formerly known as Letters Testamentary or Letters of Administration), which you can only obtain after filing Decedent’s probate.

See Gaining Access to a Safe Deposit Box (insert link to Gaining Access to a Safe Deposit Box – part of FAQ) and Appointing a Special Administrator (insert link to Appointing a Special Administration – part of FAQ) in order to obtain any Will a safe deposit box may contain.

See also RCW 11.02.130, which also provides in effect that safe deposit boxes, despite whatever their lease agreements say, cannot be held in joint tenancy form so as to make their contents “non-probate assets” by passing to any purported “joint tenant by right of survivorship.”

2. Distributing and Changing Title to Decedent’s Probate Assets

If Decedent at death had no probate assets, then a probate is unnecessary so far. Go to #3, Paying Decedent’s Debts, below.

Legally, you will need a probate (either an adjudication or a traditional probate) if Decedent’s probate assets include:

  • A net value of over $100,000 of personal property (excluding land or homes), or
  • Any real property (e.g., land or homes) that you chose not to or cannot Administer by Affidavit (link to Administering Real Property by “Lack of Probate” Affidavit – part of Administering Non-Probate Assets).

Practically speaking, you will likely need a traditional probate if there is any question regarding the identity or nature of Decedent’s assets, heirs, or beneficiaries.

See Possibilities for Avoiding Probate below.

3. Paying Decedent’s Debts

If Decedent at death had no debts or other liabilities, then a probate in Washington appears unnecessary. Go to #4, Prosecuting or Defending a Lawsuit in Decedent’s Name, below.

Legally, there is no need for a probate process in order to pay any of Decedent’s debts; creditors do not care who pays them, they just want to be paid.

Practically speaking, however, a traditional probate proceeding is the ideal vehicle in which to deal with Decedent’s debts, and if there is any potential for any debtor-creditor issues to arise around Decedent and his/her assets, it would be extremely advantageous to open a traditional probate proceeding for Decedent’s estate for no other reason than to follow and obtain the benefits of Washington’s Creditor’s Claim Procedure (link to Creditor’s Claim Procedure – part of FAQ).

Potential debtor-creditor issues include:

  • Specific known but disputed claims, g., specific claims that Decedent had disputed or intended to dispute, but that remain unresolved at the time of Decedent’s death:
    • A credit card payment dispute,
    • A business debt dispute,
    • A gambling debt, etc.
  • Generally known but potentially disputable claims, g., Decedent’s business routinely involved disputed contract claims:
    • A professional gambler,
    • A building contractor, etc.
  • Unknown but disputable claims, g., although Decedent had no history of disputed business claims, he/she was engaged in a profession known for having significant potential for disputed tort claims:
    • A physician,
    • An attorney, etc.

4. Prosecuting or Defending a Lawsuit in Decedent’s Name

If Decedent at death was not & will not be a party to a lawsuit, then a probate is unnecessary so far. Go to Circumstances Necessitating a Probate Elsewhere below.

RCW 4.20.046 provides for the survival of lawsuits upon the death of a party, and the only person who can maintain a deceased party’s interest is a lawsuit is the Decedent’s Personal Representative. See also RCW 4.20.050 and RCW 11.40.110.

Consequently, if a Decedent was a party to a lawsuit at the time of their death or they will become a party after their death – for example, prosecuting a wrongful death lawsuit arising out of the Decedent’s death – and if the lawsuit is to be maintained as regards to the Decedent, then you will need to obtain Letters. This means that a probate will be required in order to appoint a Personal Representative so that the lawsuit may proceed with Decedent’s interest in it.

See Appointing a Personal Representative to Bring a Wrongful Death Action (insert link – part of FAQ).

Circumstances Necessitating Probate Elsewhere: A Lawsuit or Property Outside of Washington

Assuming the Decedent at the time of death was not a party to a lawsuit and will not become a party to a lawsuit after their death
AND
assuming the decedent did not hold real property (land or homes) or tangible personal property outside of Washington,
then a probate outside of Washington appears unnecessary. Go to Possibilities for Avoiding a Probate below.

If the Decedent, at the time of death:

  • Was (or will become) a party to a lawsuit located outside of Washington, or
  • Held real property (land or homes) or tangible personal property located outside of Washington,

then an ancillary probate may be required in a different location under the laws of that jurisdiction.

  • Domiciliary Probate: Probate filed in Washington for a decedent who was a resident of Washington at the time of their death
    • Washington is known as the “resident” or “domiciliary” state or jurisdiction.
  • Ancillary Probate: Probate filed outside of Washington for the same decedent
    • The other state or jurisdiction or known as the “foreign” or ancillary” state or jurisdiction.

Moving forward, we will assume that we are dealing solely with a Washington probate for a decedent who was a Washington resident at the time of their death. Otherwise, see Ancillary Probate (insert link – part of (1) Opening the Probate Estate in Probate Instructions).

Possibilities for Avoiding Probate

  • No probate is required and, therefore, Letters (insert link to FAQ) are not required to distribute or change title to non-probate assets.
  • Before putting effort into obtaining Letters (insert link to FAQ) in order to redistribute or re-title property, make sure that the property is a probate asset.
    • See Determining Decedent’s Probate Assets (part of FAQ).
    • To change title to non-probate assets, see Probate Alternatives – Administering Non-Probate Assets (insert link).
  • Distributing and changing title to Decedent’s probate assets may or may not involve the court, depending on your circumstances.
  • Court involvement will likely be necessary for ANY real property (land or homes) among Decedent’s probate assets.
    • See, however, Administering Real Property by Affidavit (part of Probate Alternatives – Administering Non-Probate Assets) (insert link).

Practically speaking, the issue boils down to whether Court involvement may be avoided for any personal property among Decedent’s probate assets.

Small Estate Affidavit: Avoiding Probate for Estate of $100,00 or Less

If the value of Decedent’s “probate assets” exceeds $100,000 or if Decedent’s “probate assets” consist of ANY real property (land or homes), then go to Avoiding Probate through an Adjudication Proceeding below.

IF: The value of Decedent’s “probate assets” does not exceed $100,000

AND: Decedent’s “probate assets” consist only of personal property

THEN: the entire estate may pass to its successors by Small Estate Affidavit (more formerly known as a Personal Property Affidavit) and a probate should not be necessary in order to clear title to the property. RCW 11.62.010.

Adjudication Proceeding: Avoiding Probate through an Adjudication Proceeding

If the benefits of centralized management are desired, then go to Circumstances When Probate May Be Advantageous or Necessary below.

A probate may be avoided through one or the other of two largely identical “Adjudication Proceedings”:

  • If the Decedent died with a Will (testate): A Proceeding to Admit Decedent’s Will to Probate & Adjudicate Testacy, in which the Court establishes Decedent’s Will and, according to its terms, determines its beneficiaries as the takers of the estate. RCW 11.28.110.
  • If the Decedent died without a Will (intestate): A Proceeding to Adjudicate Intestacy and Heirship, in which, in the absence of a Will, the Court determines Decedent’s heirs as the takers of the estate according to the Washington laws of intestate succession (i.e. inheritance). RCW 11.28.110.

Advantages to an Adjudication Proceeding: The Court determines only:

  • Whether Decedent left a valid Will, and
  • Who gets what from the estate

No personal representative is appointed, and the usual tasks of a probate, and particularly those dealing with and paying Decedent’s debts and taxes (including both income and estate taxes), are left to the takers of Decedent’s estate to deal with on their own.

Disadvantages to an Adjudication Proceeding: Procedurally, an Adjudication Proceeding largely involves the same steps as a traditional probate:

  • Preparing similar Court Petitions, either
    • Adjudication: A Petition for Adjudication (with or without Will), or
    • Traditional Probate: A Petition for Appointment of Personal Representative (with or without Will) & Nonintervention Powers
  • Paying the same $200 filing fee (currently $260 filing fee in King County Superior Court)
  • Interacting similarly with the Court, usually in a non-notice, ex parte hearing
  • Sending similar Notice of the Court’s Order of Adjudication
  • Dealing with the issues of paying Decedent’s creditors and taxes
  • Waiting four months for the terms of distribution to become final, either:
    • Adjudication: Four months from Order of Adjudication for its terms to become final, or
    • Traditional Probate: Four months from Order Admitting Will to Probate for its terms to become final as regards to filing a Will Contest.

Bottom-line: If you cannot avoid probate altogether for clearing title to Decedent’s probate assets by using a Personal Property Affidavit, you are forced to choose between either:

  • An Adjudication Proceeding (insert link to Adjudication Proceeding: Determines Who Gets What but No Personal Representative Appointed – under “Probate Alternatives”) or
  • A Traditional Probate with Nonintervention Powers (insert link to Probate Instructions – Opening the Probate Estate)

Issue

An Adjudication Proceeding

A Traditional Probate with Nonintervention Powers

Personal Representative (“PR”)

None

Appointed

Assets Collected & Administered

No

Yes

Availability of Family Support (for Surviving Spouse or Children)

Impractical

Yes

Publication of Notice to Creditors

Impractical

Not required but highly advantageous and practical

Payment to Creditors

By takers, from their respective shares

By Personal Representative from the estate

Creditors’ Statute of Limitations Period

24 months from date of Decedent’s death

If Probate Notice to Creditors published, 4 months from date of first publication

Determination of Taxes Due

By takers

By Personal Representative

Payment of Taxes

By takers, from their respective shares

By Personal Representative from the estate

Will’s Terms Become Final

4 months after entry of Order of Adjudication

4 months after entry of Order of Admitting Will to Probate (and Appointing Personal Representative)

Actions Become Final

4 months after entry of Order of Adjudication

Upon (or 30 days after) filing Declaration of Completion of Probate, following end of 4-month Creditor’s Claim period

Advantages

Simplicity

1.      Centralized management due to PR: More likely that creditor and tax issues will be handled promptly and correctly; common issues (e.g. payment of debts, costs of administration, and taxes; asset sales; etc.) can be handled more effectively.

2.      Procedure in place to deal effectively with disagreements, e.g. by creditors among takers.

3.      Allows for substantially shortened creditor’s claims period.

4.      Provides more effectively for family support for surviving spouse and children.

Given the similarity of requirements between the two procedures together with the additional benefits obtained from using a traditional probate procedure, most people choose to forgo an Adjudication Proceeding in favor of a Traditional Probate with Nonintervention Powers in order to obtain its specific advantages.

An Adjudication Proceeding, however, might be advantages in limited simple circumstances, such as:

  • An estate passing to only:
    • One taker, or
    • A few takers with a history of harmony and cooperation.
  • An estate whose only legal issue is “Who gets what?”

Circumstances When Probate May Be Advantageous or Necessary

With Nonintervention Powers

The traditional Probate in Washington has a reputation for expense and delay, but this can be overcome so long as you can obtain Nonintervention Powers. See Qualifying for Nonintervention Powers (link to FAQ or Probate Instructions – Opening the Probate Estate).

Without Nonintervention Powers

If for some reason you are unable to qualify for Nonintervention Powers (usually because the estate is insolvent – more debts than assets), you should be able to open Decedent’s probate estate and be appointed as Decedent’s Personal Representative with the instructions and forms provided by this website, but you will likely need more help to administer and close the probate estate. Therefore, you are urged to:

  • Use your best efforts to qualify for and obtain Nonintervention Powers, which probably over 99% of Washington Personal Representatives do obtain. For the details of that process, see Obtaining Nonintervention Powers (link to Obtaining Nonintervention Powers – part of Opening the Probate Estate).
  • If you are unable to obtain Nonintervention Powers, then engage/hire an attorney because it is unusual for a Personal Representative to complete a probate procedure without either:
    • Being granted Nonintervention Powers by the Court, or
    • Receiving the assistance that an attorney can provide.

In effect, the Court’s granting of Nonintervention Powers and your ability to probate Decedent’s estate using Nonintervention Powers are what allow you to “do it yourself” without necessarily hiring an attorney. However, without Nonintervention Powers, it is extremely difficult to probate an estate without hiring an attorney.

A Special Circumstance:
The death of an intestate ward

This is highly unusual and arcane. Ignore this issue if it is not relevant to your situation and jump down to Probate Instructions.

A person who is the subject of a guardianship proceeding is known as the guardian’s “ward.” Upon the death of a ward, the ward will become a Decedent, and the guardianship’s assets will become probate assets. Normally, what is required in this situation is for the Guardian of the Estate to file with the Court a (1) Notice of Death of Incapacitated Person, (2) Petition for Order Approving Guardian’s Activities and Final Report, and (3) Order Approving Guardian’s Final Report. Once the Petition is approved by the Court and the Order is signed by a judge, the Guardian will then distribute the ward’s assets to the Decedent’s Personal Representative, who will have been appointed more or less contemporaneously.

If the ward died intestate (the ward died without a will), the Guardian has the ongoing authority to administer the ward/Decedent’s estate under the Guardian’s existing Letters of Guardianship without having to petition the Court for further Letters unless within forty days after the ward/Decedent’s death, a Petition for Letters (either Testamentary or of Administration) is filed and approved by someone else. RCW 11.88.150(2).

In order for the Guardian to perfect this authority to act as Personal Representative, the Guardian is required to file a Petition with the Court, electing to administer the estate under his/her Letters of Guardianship and requesting the Court for an Order transferring the guardianship proceeding to a probate proceeding having the same case number as the guardianship. Procedurally, this may be accomplished in separate Petitions:

  • One Petition terminating the guardianship
  • One petition appointing the Personal Representative (and offering any Will to Probate).

But this may also be accomplished in one “omnibus” Petition – a petition that terminates the guardianship and appoints the guardian as the personal representative (and offers any Will to probate).

Bottom-line: If:

  • You are a Guardian of a Ward’s Estate,
  • Your Ward dies, and
  • The Ward died intestate (without a will),

then you may elect to serve as the ward/decedent’s Personal Representative under your existing Letters of Guardianship so long as no Petition for Letters is timely brought by someone else. This saves you from having to bring your own Petition for Letters (and possibly from paying another fee for a Bond), but you will still have to file a Petition for Approval to Transfer the Guardianship to a Probate Estate. Furthermore, instead of closing the probate estate by filing a Declaration of Completion of Probate as you normally would in a traditional probate with Nonintervention Powers, you will close the combined guardianship/probate estate by filing a Petition for Approval of Final Account, in which you request the Court to approve your account and distribution of the estate’s remaining assets to those persons entitled to them. Lastly, as Personal Representative in this circumstance, you will not have Nonintervention Powers, so if you have any need for them you will need to petition the Court for that as well (most easily done in your Petition for Approval to Transfer).

All in all, this process is not as efficient as it might initially appear.

Probate Instructions

If you decide that traditional probate is the route that you should take, you can find the instructions for the probate process here:

  1. Opening the Probate Estate (insert link)
  2. Administering the Probate Estate (insert link)
  3. Closing the Probate Estate (insert link)
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