PROBATE - FAQ
WHY DOES PROBATE EXIST?
The probate process was created because some family members fight over the
distribution of an estate. To limit conflicts and make sure things are done
correctly, the legislature decided to make the Superior Court Judge the
“traffic cop” to monitor the process.
The Judge makes sure that the will’s provisions and the law are followed.
"The probate of the will" consists of that monitoring process.
WHAT IF THERE IS NO WILL?
The Legislature has written a will for those who do not write their own.
Dying without a will is called dying “intestate”. The Legislature tried to
guess who you would want to inherit if you die without writing a will. For
instance, if you do not have a will, and you are married, your spouse
receives all your community property and one-half of your separate property.
Your children receive the other one-half of your separate property. However,
there is still a probate to make sure there is not a fight.
WHAT HAPPENS IN A PROBATE?
The Court determines if the will is valid and the Court authorizes the
Personal Representative named in the will to:
1) identify, gather, and protect the assets,
2) pay all creditors and taxes, and
3) distribute the decedent’s assets to the heirs correctly.
HOW DO YOU START A PROBATE?
Your attorney prepares a Petition explaining the details of the situation to
the Judge and at a hearing before the Judge, obtains an Order authorizing
the Personal Representative to proceed with probate. The Personal
Representative’s authority to manage the decedent’s affairs is set out in
“Letters Testamentary”.
ARE ASSETS “FROZEN” IN A PROBATE?
No. Once the Order starting the probate has been signed by the Judge and the
Personal Representative has received his Letters Testamentary, the Personal
Representative has access to the assets to pay bills, etc.
HOW LONG DOES PROBATE TAKE?
Publishing Notice to Creditors is a four-month process. As soon as that four
months is over, the probate can be closed if there are no other issues.
WHAT ISSUES CAN THERE BE?
There are four main categories of possible issues in a probate:
1) heir issues, e.g., disputes among heirs, problems finding heirs, etc.
2) creditor issues, e.g., disputes with creditors, not enough liquid assets
to pay creditors, etc.
3) asset issues, e.g., problems locating assets, problems valuing or
liquidating assets, etc.
4) tax issues, e.g., federal estate tax, state inheritance tax and/or income
tax may be owed.
HOW MUCH DOES PROBATE COST?
The attorney’s fees for a probate in Washington State are determined by the
amount of time it takes to solve the issues listed above. The fewer the
issues, the less expensive the probate.
CAN I AVOID PROBATE?
Trusts and community property agreements are two of the most common ways to
avoid probate. An attorney knowledgeable about estate planning can review
what is appropriate for you and your family.
Elizabeth A. Perry has been helping Clark County residents with their estate
planning and probate needs since 1976. She is a frequent seminar speaker.
Her practice emphasizes probate, Medicaid issues, wills, trusts, incapacity
issues, durable powers of attorney and guardianships. Phone: (360) 816-2485
Fax: (360) 816-2486 E-mail: liz.perry@landerholm.com
(The above should not be construed as specific legal advice and is intended
for general information purposes only.)
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