It is unfortunate that so many people have not been given appropriate information (or have been given misinformation) about "probate", such that this straightforward and relatively inexpensive legal procedure nevertheless remains a mystery at the time of the loss of a family member. Hopefully this explanation will be helpful.

"Probate" comes from a latin word meaning "to prove," and literally refers to "proving" to a court that the Will of a deceased person is in fact that person's Will and that it was properly executed (signed) under the laws of the State. The word "probate", however, has actually come to mean the process by which a deceased person's debts are paid and property distributed to the rightful heirs or beneficiaries, whether or not a Will exists.

Although a person's Will is required to be filed with the County Clerk after a death, a probate may not be required in every case. Here are the primary reasons why you, as the Personal Representative named in the Will or next of kin, would file a probate:

1. If a bank or other financial institution will not transfer assets without "Letters Testamentary", which are issued in a probate proceeding;

2. If the Department of Licensing will not issue a new title in the name of the beneficiary;

3. If a title company indicates it cannot insure a transfer of title from the beneficiary to a third person without a probate proceeding (unlike in the case of a licensed vehicle, there is no "title" or "certificate" to be changed);

4. If more than one beneficiary is named in the Will or is otherwise entitled to inherit property (making it highly likely that one or more of these situations above will apply);

5. If the deceased person has conducted business activities or if there might be claims asserted against the estate, you will probably want the protection of "cutting off" creditors' claims which the probate notice and publication statute provides; or

6. Finally, if any Will provision or any disposition of property is being contested or is likely to be contested, a probate proceeding should be filed.

If none of the above apply (i.e., all assets can be transferred, claims are unlikely and there are no contested issues), oftentimes a probate is not necessary. It is good to keep in mind, however, that the attorney time (and fees) incurred without a probate can approach or even exceed that required for a probate. There is a "small estate" procedure available under our statute, but it still requires publication and involves much the same attorney work as a probate without the benefits, so its use has been limited.

Filing a Probate. The original of the Will (if not already filed) and a certified copy of the death certificate are filed with a petition, prepared by the attorney, to have a personal representative ("PR") appointed to manage the estate. The court clerk issues letters testamentary (or letters of administration in the absence of a Will) as a symbol of the PR's authority, which in most cases includes the power to pay debts, sell and distribute assets and/or proceeds of assets to the decedent's beneficiaries without further order from the court.

A notice of pendency of the probate proceeding is published in a local newspaper. Creditors of the decedent have four months to submit any claims they may have against the decedent or (with certain exceptions) the claim is barred. After all expenses and claims have been paid (and any contested claims adjudicated) and the assets distributed, the court case is closed, sometimes by a court order but more often by the filing of a simple "Declaration of Completion of Probate." (An important exception being that real estate outside the State of Washington must be administered in accordance with the laws of the State in which it is located and will require an ancillary proceeding in that state.)

Finally, assets titled in joint tenancy with right of survivorship (most financial accounts belonging to married people) transfer to the survivor by operation of law (i.e., automatically) upon the death of the other joint tenant.

The above is furnished as general information relevant in the State of Washington only and may not be relied on as legal advice, specific to any situation or otherwise, by any person, whether or not a client of the firm.