A Trust Avoids a Probate – What Exactly Is a Probate?
PROBATE – An Explanation
Probate was created because some family members fight over the assets of an estate. To limit conflicts and make sure things are done correctly, the Superior Court Judge has been made the “traffic cop” to monitor the process.
The Judge makes sure that the will and the law are followed. “The probate of the will” consists of that monitoring process.
WHAT IF THERE IS NO WILL?
The Legislature has written a will for those who do not write their own. Dying without a will is called dying “intestate”. The Legislature tried to guess who you would want to inherit if you die without writing a will. For instance, if you do not have a will, and you are married, your spouse receives all your community property and one-half of your separate property. Your children receive the other one-half of your separate property. However, there is still a probate to make sure there is not a fight.
WHAT HAPPENS IN A PROBATE?
The Court determines if the will is valid and the Court authorizes the Personal Representative named in the will to:
1) identify, gather, and protect the assets,
2) pay all creditors and taxes, and
3) distribute the decedent’s assets to the heirs correctly.
HOW DO YOU START A PROBATE?
Your attorney prepares a Petition explaining the details of the situation to the Judge and at a hearing before the Judge, obtains an Order authorizing the Personal Representative to proceed with probate. The Personal Representative’s authority to manage the decedent’s affairs is set out in “Letters Testamentary”.
ARE ASSETS “FROZEN” IN A PROBATE?
No. Once the Order starting the probate has been signed by the Judge and the Personal Representative has received his Letters Testamentary, the Personal Representative has access to the assets to pay bills, etc.
HOW LONG DOES PROBATE TAKE?
Publishing Notice to Creditors is a four-month process. As soon as that four months is over, the probate can be closed if there are no other issues.
WHAT ISSUES CAN THERE BE?
There are four main categories of possible issues in a probate:
1) heir issues, e.g., disputes among heirs, problems finding heirs, etc.
2) creditor issues, e.g., disputes with creditors, not enough liquid assets to pay creditors, etc.
3) asset issues, e.g., problems locating assets, problems valuing or liquidating assets, etc.
4) tax issues, e.g., federal estate tax, state inheritance tax and/or income tax may be owed.
HOW MUCH DOES PROBATE COST?
The attorney’s fees for a probate in Washington State are determined by the amount of time it takes to solve the issues listed above. The fewer the issues, the less expensive the probate.
CAN I AVOID PROBATE?
Trusts and community property agreements are two of the most common ways to avoid probate. An attorney knowledgeable about estate planning can review what is appropriate for you and your family.
Elizabeth A. Perry, a member of the National Academy of Elder Law Attorneys, has been helping Clark County residents with their estate planning needs for over 20 years. Her practice emphasizes wills, trusts, probate and Medicaid planning. You are invited to call her to schedule an appointment or sign up for a class at (360) 816- 2485.
(The above should not be construed as specific legal advice and is intended for general information purposes only)
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