FREQUENTLY ASKED QUESTIONS
What is probate?
ANSWER: After someone dies, their money and property (called the "estate") must be distributed to their heirs. When supervised by the courts, this process is called "probate." Probate is not always necessary, but in many situations, probate may be required. Probate may be preferable when you must pay debts, claims or taxes, or if you anticipate disagreement over dividing the estate.
What is being proved by probate?
ANSWER: The will of someone (the "decedent") who has died leaving a valid will (i.e., died "testate") must be proved. Specifically, what is being proved is that the will was signed by its maker (its "testator" (male) or "testatrix" (female)), and is the most curl02xrent will of the testator or testatrix.
The testator or testatrix was legally competent to make a will: A person of sound mind (i.e., having "testamentary capacity" and lacking "insane delusions") who has attained the age of 18 years.
The will was made under lawful circumstances: Witnessed by at least two competent witnesses who subscribed their names to the will while in the presence of the testator/trix at his/her request, and not made by mistake, restraint (duress), fraud, undue influence, or forgery.
To whom is the will being proved?
ANSWER: The Superior Court usually in the county in which the decedent resided at death.
What's the probate process, simply and generally?
ANSWER: File any will and petition the court for appointment of a personal representative (the "PR").
Send notice of appointment of PR to beneficiaries, heirs and other interested parties.
Collect and manage (and possibly sell) property.
Pay debts of the estate.
Determine and settle any taxes due.
Distribute remaining assets.
Close the estate.
What happens if someone dies without a valid will?
ANSWER: Without a will to prove or a named personal representative to appoint, the court turns not to the terms of a will but, instead, to state law and:
Appoints a personal representative (in other states, called an "administrator" according to a prioritized list provided by law; who ultimately distributes decedent's property in shares to a prioritized list of recipients, the "heirs" or "heirs-at-law", provided by law, who "take by inheritance" or "take by intestate succession."
What happens if decedent has a valid will but none of those named are able or willing to serve as personal representative?
ANSWER: A petition for probate of will and letters of administration with will annexed is filed, and an administrator with will annexed is appointed:
The personal representative is an appointed "administrator," but the distributees are beneficiaries, who take under the will.
What happens if decedent has a valid will, but all decedent's beneficiaries have predeceased the decedent?
ANSWER: A petition for probate of will and letters testamentary is filed, and a personal representative is appointed
The beneficiaries will be decedent's heirs, who take according to state statute.
How long does probate take?
ANSWER: That depends on whether the personal representative wants to take advantage of the Washington statutory creditor's claim law. If its benefits are desired, the probate process may take several months.
Should you have additional questions, please make an appointment with me at Marine View Law & Escrow by calling my office at 206-701-6564 or 877-449-4819.