WHAT IS PROBATE?

Probate is a legal proceeding in court that takes place after someone dies. It is a court-based procedure to establish the validity of their Will, if the decedent had one, and to transfer the assets as set forth by the Will or intestate laws. Although being appointed as the Personal Representative of a person’s estate or going through probate may at first seem complicated, it is actually simpler in Washington state than some other states. If the decedent’s Will provides the Personal Representative with the necessary powers, the process can be less complicated and costly.

WHO IS THE PERSONAL REPRESENTATIVE?

A Personal Representative is the person nominated by the Will or appointed by the court to administer the decedent’s estate and distribute or transfer the assets as the decedent instructed in his or her Will, if there is one. He or she is typically named in a Will and is generally a close friend or family member. The Personal Representative manages the entire process of probate and can be liable for failing to fulfill his or her duties.

WHAT ARE THE DUTIES AND RESPONSIBILITIES OF A PERSONAL REPRESENTATIVE?

RCW 11.48.010 states ”It shall be the duty of every personal representative to settle the estate, including the administration of any nonprobate assets within control of the personal representative under RCW 11.18.200, in his or her hands as rapidly and as quickly as possible, without sacrifice to the probate or nonprobate estate. The personal representative shall collect all debts due the deceased and pay all debts as hereinafter provided. The personal representative shall be authorized in his or her own name to maintain and prosecute such actions as pertain to the management and settlement of the estate, and may institute suit to collect any debts due the estate or to recover any property, real or personal, or for trespass of any kind or character.”

As a Personal Representative, your duty is to protect the estate and act in the best interest of the beneficiaries. If you are appointed as the Personal Representative you must put the interests of the estate before your own personal interests, even if you are a beneficiary yourself. The Personal Representative is obligated to exercise the utmost good faith and diligence in administering the estate in the best interests of the heirs. In re Estate of Larson, 103 Wn. 2d 517, 521 (1985).

WHAT DOES THE PROBATE PROCESS ENTAIL?

There are numerous steps that must be taken during the probate process as well as important deadlines to keep in mind. Below is a general overview of the process and steps you need to take as a Personal Representative.

  • Gather Key Documents:
    • Gather and review documents such as the original Will, contact information for heirs, income tax returns, life insurance documents, retirement plans, bank statements, and trust documents. The decedent may have designated beneficiaries on retirement accounts or life insurance policies. You will also need to review and inventory cars, jewelry, and other personal property.
    • Note that the Personal Representative must create an inventory of the estate within three months of being appointed. RCW 11.44.015.
  • Open Probate
    • There are a few steps that must be taken in order to start probate. First, the Will needs to be filed with the court. Second, certain documents must be drafted and filed such as a Petition asking the court to admit the Will to probate and to appoint you as the Personal Representative, assuming you have been nominated. An Order will also be presented to the court so that once the Judge signs, the probate starts and you are appointed as the Personal Representative. The Court will issue Letters Testamentary which evidence that you have been appointed as the Personal Representative.
  • Notify the Estate’s Beneficiaries and Heirs
    • Within 20 days of being appointed, you must give notice to heirs and beneficiaries that you have been appointed as the Personal Representative.
  • Determine Debts and Provide Notice to Creditors:
    • Review unpaid bills or outstanding loans. You may also choose to notify the creditors of the estate of the decedent’s death. While this is not required, it is advantageous in most situations. Your attorney may publish this notice in a legal newspaper so that the creditors receive notice and have only four months to present their claims. After this time, their claims will be barred.
    • If you chose not to provide notice to creditors, creditors will have 24 months from the decedent’s death to bring a claim. RCW 11.40.051.
  • Provide Notice to Washington Department of Social & Health Services
    • You are required to give written notice to WDSHS. You will also want to provide a copy of your Notice to Creditors to WDSHS if you do intend to publish a notice.
  • Taxes and Opening a Separate Bank Account for the Estate
    • The estate is its own tax paying entity. As a result, you will need to obtain an Employer Identification Number (EIN). Once an EIN has been obtained and the Letters Testamentary have been received, the Personal Representative can open a checking account for the estate. You will need to present your Letters Testamentary in order to open the account.
    • You may need to file a federal tax return for the estate. A Washington State tax return is required only if the estate exceeds $2 million.
  • Closing the Estate
    • Once the time allowed for creditor claims has past, you can begin to close the estate. You will need to give 30 days’ notice of the closing of the estate to the beneficiaries. If no one objects, the estate can be closed.
    • The beneficiaries may also sign a waiver of the 30 day notice so that the estate can be closed sooner without needing to wait the 30 day period. If beneficiaries raise challenges, a hearing must be set and the court may require additional information. If there are no objections and the estate is closed, the Personal Representative may distribute assets to the beneficiaries.

WHEN CAN A PERSONAL REPRESENTATIVE BE REMOVED FOR MISCONDUCT?

If the Personal Representative’s conduct is damaging or about to damage the interested parties, the court may remove the Personal Representative. Some examples of when a Personal Representative may be removed are as follows:

  • Concealing the true value of an asset subject to administration.
  • Self-dealing or using funds from the estate. For example, using the decedent’s real property as your own and for your own benefit.
  • Commingling personal funds with estate funds.
  • Failing to carry out the decedent’s wishes according to the will.

CAN A PERSONAL REPRESENTATIVE RECEIVE COMPENSATION?

Personal Representatives are entitled to compensation for their time and expenses. Some Personal Representatives choose to do the work without receiving any compensation. If you would like to be compensated, however, keep detailed records of the time you spend working on the estate as well as your expenses. The court will need to review and approve your request for compensation. The court considers your time, skill, effort, responsibility, and other facts that it finds to be relevant. RCW 11.98.070 (26).

Note that this is a high level overview of the probate process and that there are additional steps to be taken. Every case is different but having an attorney experienced in estate planning and probate can help simplify the probate process and provide you with guidance during an already difficult time. Additionally, be sure that you have a Will that is well-drafted so that your wishes can be followed and the probate process can be as simple as possible for your Personal Representative.

Nahal Nabavinejad specializes in Estate Planning at MDK Law.

This blog contains general information and is not intended to provide specific legal advice or establish an attorney client relationship. This blog should not be used as a substitute for legal advice from a licensed attorney in your state.

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