Generally, probate is the legal process of passing property and other assets to your heirs and winding up a person’s legal existence after they pass. In Washington State, this process usually takes 6-12 months when uncontested. It is also not legally required unless certain circumstances exist.
When to use the probate process
Probate is required in order to pass real estate (that is not jointly owned, and does not have a transfer-on-death deed), and for estates without real estate but with assets over $100,000. When estate planning attorneys talk about avoiding probate, our goal is to change how assets are owned such that the person who passes only owns personal property or cash assets valued at less than $100,000. I would never recommend using these strategies solely for the purpose of avoiding probate, but sometimes these strategies can make the transfer of assets easier and quicker than going through the probate process — for example, for a couple whose estate is entirely jointly owned, it makes sense to avoid probate upon the death of the first spouse, because it is easy (everything is already jointly owned), there is less paperwork, and the surviving spouse will have access to the estate’s assets much faster than going through probate first.
For single individuals (including those who survived their spouses), the probate process is often the easiest, most cost effective process for transferring assets to heirs.
One quick note: whether you have a will or not does not matter in terms of whether your estate will need a probate process. Often, when I am working with a couple who is planning jointly, one of our goals is to avoid probate for the first spouse to pass. However, since we can’t predict the future, both spouses will have wills. Similarly, if you don’t have a will, but you have an estate valued at over $100,000, your estate will still need to go through probate.
What happens during probate?
After someone passes away, the personal representative (if there’s a valid will) or the administrator (when there is no will) will petition the court to open a probate proceeding and ask the court to name them as the personal representative or administrator. This happens at the Initial Hearing (though it is often handled administratively).
Once appointed, the work really begins. Within 20 days, the personal representative must give notice of their appointment to all of the beneficiaries listed in the will, to everyone who would receive a portion if there was no will, and to any beneficiary of nonprobate assets (like beneficiaries of life insurance or retirement accounts).
Within 30 days, the personal representative must decide whether to publish a Notice to Creditors or send a Notice of Appointment and Pendency of Probate to DSHS.
Within 60 days of appointment, the Notice of Appointment and Pendency of Probate must be sent to the Washington State Department of Revenue if the decedent was an owner or partner in a business, LLC, or corporation such that they might have a business-related tax liability to the State of Washington.
Within 3 months of appointment the personal representative must prepare and verify as correct an inventory and appraisement of the estate. The inventory must be separated into these categories: 1. real property, 2. stocks and bonds, 3. mortgages, notes, and other written evidence of indebtedness owed to the decedent, 4. bank accounts and money, 5. furniture and household goods, and 6. all other personal property. Mortgages and encumbrances on any of the property should also be listed. It is not required to be filed with the Court, but it must be provided to anyone who asks for it within 10 days of the request.
After 1 year, the personal representative should file a Statement of Case Status explaining why the probate is not yet closed. Most probates should be finished within a year, but some probates cannot be finished within that time period by no fault of the personal representative or administrator. All the Court needs is a simple explanation of what’s going on — and often the delay is related to selling a home or other real estate.
Somewhere between the start and the end, the personal representative is responsible for filing the final Form 1040 for the deceased person. If the estate realizes any gain on any asset after the decedent died, then they will also need to file a Form 1041. If the estate is larger than $2.193 million, Washington State estate tax will be owing, and the personal representative or administrator will need to file Form 706 with the Department of Revenue. If the estate will owe estate taxes, it is a very good idea to consult with a probate attorney rather than trying to probate on your own.
In order to file these tax forms, the personal representative or administrator may need to get an estate tax ID number from the IRS. This number helps keep the estate’s finances separate from the individual finances of the personal representative or administrator, and can also help with opening a bank account for the estate.
At the time of closing, the personal representative or administrator must mail or personally serve all heirs and beneficiaries with a copy of the Declaration of Completion of Probate and the Notice of Filing of the Declaration of Completion (unless those heirs and beneficiaries waive their rights to receive these documents). The best practice is to have beneficiaries sign a receipt that includes a waiver of notice when they receive the assets they are inheriting.
