Law Office of Caroline R. Suissa-Edmiston, LL.M., LLC

IS PROBATE NECESSARY?

In many cases, probate proceedings are not necessary to transfer property of the deceased to persons entitled to it. However, depending on a variety of factors, probate may be necessary or preferable. Consultation with a legal advisor is recommended.  There may be tax and creditor implications of one choice over another.

WHAT IS PROBATE?

Probate is the technical, legal term for distribution of the deceased person's estate under the supervision of the court. It is designed to protect all those who have an interest in the deceased's property, such as immediate family, joint tenants, creditors and the taxing authorities.

The probate procedures in Washington state are relatively simple and, in most cases, require very little court intervention.

Appointment of an Executor or Administrator - this person takes charge of the property, its distribution, and the filing of necessary papers in court. Often times, this person is named in the will. If there is no will, the court will usually appoint a surviving spouse or relative to serve this function.

Executor Responsibilities:

1. Provide proof that the will is valid and is the last will of the deceased.

2. Provide written notice of probate proceedings to all known heirs and beneficiaries.

3. Give actual notice of the deceased's name and social security number to the State of Washington - Department of Social and Health Services, Office of Financial Recovery.

4. File with the court and publish in a legal newspaper a notice of death advising creditors to file any claims against the estate within four months.

5. Create an inventory of all the deceased person's property.

6. Prove to the court that the estate is solvent (the total estate assets are greater than its total debt.)

After all these steps have been taken and non-intervention powers granted by the court, the executor can do whatever is necessary to administer the estate without going to court for approval. That includes appraising property, investing and managing assets, paying creditors, filing and paying taxes, and transferring of property.

7. File a Declaration of Completion of Probate with the court once the probate process is concluded and all the steps have been completed.

NON-PROBATE PROCEDURES

ESTATE TRANSFER BY AFFIDAVIT -- Estates Under $100,000 - No Probate Needed

As long as real property is not involved, Washington state law allows the transfer of small estates to surviving heirs without formal probate procedures, as long as they are entitled to the estate, notify other potential heirs, and the following conditions are met:

1. It has been 40 days since the death;

2. The estate is under $100,000;

3. No probate pending;

4. All creditors have been satisfied; and

5. All estate debts paid

If all these conditions are met, the claiming heir must submit a completed, signed and notarized affidavit affirming that these steps have been accomplished. That affidavit would allow the transfer of assets to the claiming heir.

Remember, depending on a variety of factors, going through probate may be necessary or preferred.

JOINT TENANCY --A Non-Probate Way to Transfer

Property held in joint tenancy with a right of survivorship usually can be transferred after a few prerequisites are met. These may include furnishing a copy of the death certificate and if the estate is over $1,500,000, proof that no federal or state estate taxes are due. Estates under $1,500,000 are no longer required to file federal estate tax returns, therefore Washington State no longer requires they submit a non-liability tax release form.

COMMUNITY PROPERTY AGREEMENT

Upon death, these agreements are used to transfer property to the surviving spouse without going through formal probate proceedings. According to the law, community property agreements cannot interfere with the right of creditors to collect debts. That means the deceased person's debts must still be paid. Contact an attorney to assist in the transfer of property covered by a community property agreement.