What is Probate?

Probate is the official, court-administered closing of a person’s estate after they die. If the person left a Will, it is filed with the clerk of the Superior Court of the county where the person lived at the time of death. If there is no dispute about the validity of the Will, it is “admitted to Probate” and the person named as personal representative, or executor, will be given court-certified authority to close the estate.

How long does Probate take?

The complexity of an estate – and the relationship between the heirs – will normally determine the length of time it takes to administer and close an estate. There are some timelines built in to the Probate statute, but there is no specific time limit for closing an estate. Some estates, especially substantial estates that are the subject of disputes between heirs, can remain open for years, even decades. But most estates can be administered and closed within a matter of months.

What kind of deadlines are there for a Probate?

The first deadline contained in the statute deals with the production of the Will. The custodian of the Will – the person with physical possession of the original document – has 30 days from the time he or she learns of the death of the testator (the person who made the Will) to deliver it to the court or to the personal representative. (If the personal representative is also the custodian, he or she has 40 days to file it with the court.)

Normally, at the time the Will is filed, the personal representative also petitions the court for an order officially appointing him or her to administer the estate and directing the court clerk to issue “Letters Testamentary.” Certified copies of the letters are like an official “license” to carry on the business of administering and closing the estate: accessing safe deposit boxes, paying bills out of the testator’s checking account, listing real property for sale, etc.

What if the Testator had outstanding debts?

There is a specific procedure for notifying creditors, known and unknown. After notice is published in the newspaper, creditors have four months to officially file claims against the estate. In addition, all “reasonably ascertainable” creditors – those who could be discovered by going through the testator’s financial records and opening their mail – must be given actual notice, by mail or personal service. If the statutory procedures are followed, creditors’ claims are cut off after the deadlines and are forever barred.

What happens if creditors are not given notice?

Notice to creditors is optional. A personal representative can choose not to provide notice. But the time during which claims can be submitted is then extended to two years from the date of death. Most people choose to publish notice, gather in all the bills and make decisions on payment, and then close the estate within a few months.

What else could delay the closing of an estate?

Large, complex estates – especially those that are subject to state and federal estate taxes – often take longer to administer because of the need to pull all the assets together, do an inventory to provide to creditors and heirs, file tax returns, etc. If heirs disagree about their distributions under the Will, or demand an accounting of the estate assets, the process can be drawn out.

Can Probate be avoided?

A whole industry based on Probate avoidance sprung up and has flourished in the three and a half decades since Norman Dacey’s bestselling book “How to Avoid Probate” became a certified phenomenon. Companies that provide what are essentially canned, fill-in-the-blanks living trusts have made millions of dollars because of people’s sometimes irrational fear of “going through Probate.” In fact, Washington’s Probate process is among the least complicated. An uncontested probate of a non-taxable estate shouldn’t cost much more than it would for one of the prefabricated living trusts that have become so popular. There are other Probate avoidance techniques you can employ, including community property agreements, beneficiary designations, and gifting. An attorney knowledgeable about estates and Probate can help you plan your estate to avoid Probate, if that is your main goal, but he or she can also help you determine if that approach is in the best interest of you and your heirs.

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© David H. Rorden 2012