Demystifying the Probate Process

By Michael Safren, Esq.

For many people, their first introduction to estate planning and the court system is managing the probate process for a loved one.  It can be extremely overwhelming for just about everyone.  You’ve just lost someone you care deeply about.  While dealing with feelings of loss and grief, you now have to embark on a complex legal journey to deal with the assets of your loved one.

What is probate?

Probate is the legal process of settling the estate of someone who has passed away, the "decedent."  It generally includes:

• proving in court that a deceased person's will is valid (usually a routine matter);
• identifying and inventorying the deceased person's property;
• having the property appraised;
• paying debts and taxes, and
• distributing the remaining property as the will (or state law, if there's no will) directs.

What kind of estates are subject to probate?

Pretty much everyone who dies has to go through some sort of process with the court to finalize their estate.  The process can be simplified if someone dies with very few assets or if all their assets are owned by a Trust.  But there will still be a court process to ensure that all assets have been distributed properly.

What is the Personal Representative.

When someone makes a Will, they select a “personal representative” who will have the power to act on behalf of their estate after they die.  If someone doesn’t make a Will before they die or the person they named as personal representative has already passed, then the Court will name someone to act as Administrator for the estate.  There is a preferred or priority order of those who would serve as the Administrator of the estate starting with surviving spouse, next to adult children, the parents of the decedent, and then to the siblings of the Decedent.  However, if the decedent is not survived by any of the above, or if none of the above petition the Court to serve as the Administrator, a creditor or a service provider under contract with the office of public guardianship may be appointed to serve as the Administrator.

What do you need to start the probate process?

The probate process begins by petitioning the Court to give authority to either a personal representative or an administrator to manage and oversee the administration of the estate.  As part of the petition, you will need to present the following documents, the Original Will (if the decedent created a Will), the Oath of Personal Representative, and a certified copy of the Death Certificate. 

If the decedent had a Will, the original Will must be presented to the Court when opening the probate process.  If you cannot find the original Will, the Court may assume that the decedent either made no Will or that it was intentionally destroyed, and, as a result, the instructions within the Will may not be honored.  In such an instance, the Court will distribute assets based on Washington’s intestacy laws.  These intestacy laws are quire rigid and do not take into account family dynamics, tax minimization, or other concerns the decedent might have.  This is an important reminder to keep your Will someplace that others can find it after you are gone. 

You will also need the names and addresses of all beneficiaries named in the Will as well as any immediate family members such as children, grandchildren, and parents.

What are the steps in the probate process?

The probate process is a complex set of steps that is governed by state law and overseen by the Courts.  It is essential that each step is completed according to the laws.  Missing any required steps can leave the estate open to claims from creditors and beneficiaries.  If you are named as personal representative for someone, the steps in Washington State are:

1. Open probate.  You will petition the Court that you have the original Last Will and Testament of the deceased, that it was validly executed and let the Court know if the estate is solvent or not (more assets than debts).  You will also sign an oath stating that you are willing and able to serve as personal representative for the estate and the Court will issue “Letters Testamentary” which give you the formal authorization to act on behalf of the estate.
2. Notify all interested parties that you are acting as personal representative.  This includes all heirs and beneficiaries, and all children, grandchildren, great-grandchildren who are not named in the Will.  This gives the beneficiaries and heirs an opportunity to challenge your appointment if they have reason to do so.  However, if they fail to make a timely challenge after this notification, they are barred from challenging your appointment down the line.
3. Gather information on the assets of the estate.  After the notices have been sent out, you will need to gather information about all the decedent’s assets.  That includes bank accounts, stocks and bonds, life insurance, real estate, digital assets, safe deposit boxes.  You will need to apply for death benefits from the Social Security Administration, Veterans Administration and/or employer pensions.  You will also inventory all automobiles, furniture, jewelry and other possessions.
4. Prepare an inventory of all assets.  You will create a spreadsheet listing all assets as well as their value on the date of death.  You many need to hire an appraiser to determine the value of some of the assets.  This will also serve as a helpful list when distributing all assets.
5. Determine the debts of the estate.  You will review financial records to find any outstanding loans and determine if they are still valid after death.  This includes mortgages, car loans, lines of credit, student loans, etc.  You will also gather and pay all bills, like outstanding medical bills and utilities for the decedent’s house until it is transferred or sold.
6. Notify creditors of the estate.  Once you have reviewed all the debts that could be owed by the estate, you will need to notify those creditors.  Creditors have 2 years to make a claim against the estate.  However, you can reduce this claim period to 4 months by publishing a notice of the decedent’s death in a local newspaper.
7. Manage estate assets during administration.  You will manage and protect assets during administration.  That includes keeping an account of all expenses, opening a checking account for the estate to pay bills, collect dividends and interest, pay bills, and file necessary tax returns.
8. Distribute assets to beneficiaries.  Once taxes and other expenses have been paid, you will need to distribute the assets of the estate to beneficiaries. 
9. Close the estate.  Once all the assets have been distributed, you can close the estate.  You’ll need to file a declaration with the Court summarizing all your actions as personal representative.

Do I really need a lawyer for the probate process?

Probate is a complex process that is established by law.  You may miss essentials steps that could invalidate the work that you do.  Further, if you are acting as the Personal Representative or Administrator of the estate, you could be held personally liable for any violation of your fiduciary duties to the estate and its beneficiaries. An attorney experienced in the probate process can be your guide through the process.  It could end up costing a lot more to fix later if the process isn’t done correctly from the beginning.  It is important to remember that you are not required to employ the attorney who drafted the Will.  You should select someone you trust to help manage the process.

At the Law Offices of Jenny Ling, PLLC, we are experienced in shepherding you through the probate process.  As you are dealing with feelings of loss and grief, we can be your trusted advisor to ensure that your loved one’s wishes are honored in the most timely way possible.

Michael Safren is a Partner at The Law Offices of Jenny Ling, PLLC.  His practice focuses on probate, business, real estate, and civil litigation.