Typically, everyone wants to avoid a court proceeding (including most lawyers). Unfortunately, when someone dies without a will, the courtroom is impossible to escape for their heirs because they must go through a complex probate action known as intestate probate.
However, while having a valid Last Will and Testament can simplify the probate process, a will alone does not allow your heirs to avoid probate.
What is probate administration?
Probate administration is the court-supervised process of transferring titles and assets from the name of someone who passed away and into the name of their beneficiaries. Probate ensures that a decedent’s assets are correctly distributed and all debts settled.
Probate begins when a petition is filed with the court, usually in the county where the deceased person resided at the time of their death. The petition typically includes the death certificate and the decedent’s will, if one exists.
The court then appoints a personal representative with authority to manage the estate until it is transferred to the recipients. The personal representative is usually a family member or members (often named in the will … if one exists). Next, the personal representative needs to obtain “letters testamentary” from the court, which sometimes takes weeks. Until receiving the letters testamentary, the personal representative has no authority to transfer money or pay bills.
Once the will is filed, a four-month countdown begins. During these four months, anyone with a dispute may challenge the will’s validity. Also, the personal representative must settle any outstanding debts and expenses owed by the estate. This is partially accomplished by publishing a “Probate Notice to Creditors” in a local newspaper, which allows creditors to bring claims against the estate within that four-month window. If the personal representative does not post this notice, creditors typically have two years to bring claims.
The personal representative is also responsible for identifying and taking inventory of the decedent’s assets, such as bank accounts, real estate, investments, personal property, and other valuable belongings.
In Washington state, assets typically take a year to pass through probate, and many families need an attorney’s help to probate an estate.
Is probate necessary if there is no will?
When someone passes away without a will, it is known as dying intestate, and probate is very, very, very necessary if there is no will.
In fact, the process is much less straightforward, and frequently much more contentious, because the decedent left no instructions regarding the distribution of their assets.
The probate process without a will is similar to probate with a will, as it involves legal proceedings and estate administration. The court still appoints a personal representative (typically a surviving spouse, adult child, or close family member) to oversee the estate distribution. The primary difference is the distribution process, which is guided by intestate succession laws instead of the decedent’s instructions (because there aren’t any).
In Washington state, the inheritance hierarchy is the:
- Surviving spouse or state-registered domestic partner. The spouse or partner will receive the following share of the estate:
- Their portion of the community estate, and…
- One-half of the remaining estate if the deceased has direct descendants or legally adopted children.
- Three-quarters of the remaining estate if there are no children but the deceased has living parents or siblings.
- The entire estate if the above issues are not applicable.
- Direct descendants and legally adopted children of the deceased.
- Parent or parents.
- Siblings.
- Grandparent or grandparents (if the deceased is survived by both maternal and paternal grandparents, the estate is evenly split).
- Descendants of the grandparents, divided by groups and split according to representation.
- For example, the deceased has a surviving uncle descended from his maternal grandmother and three surviving nieces descended from his paternal grandmother.
- Half of the estate goes to the surviving uncle.
- Half of the estate is divided evenly between the three surviving nieces.
The personal representative must ensure that the assets are distributed fairly and follow federal and Washington state laws. This may involve selling assets and dividing the proceeds among beneficiaries or transferring ownership of specific assets to the rightful heirs.
If no relatives are found, the assets are escheated, meaning the state claims them.
How long does probate take without a will?
It’s impossible to say how long a probate procedure may take when the decedent did not leave a will. It is safe to assume that, since probate generally takes a year in Washington state, it will take about a year. However, probate without a will can become complicated by several factors, which can dramatically extend the time.
Even with a will, someone can contest probate by raising concerns about the will’s validity or improper will execution. Without a will, the likelihood of disputes and challenges during the probate process increases dramatically.
One of the leading causes of conflict during probate is beneficiary disputes. Beneficiaries may have opposing interests, disagreements over asset distribution, or concerns regarding the administrator’s actions. Resolving these disputes often requires negotiations, mediation, or court involvement, which take time and can quickly chip away at the assets in question.
Creditors may also come forward with claims against the estate. Often the central conflict is creditors attempting to assert priority for payment of their debts. Evaluating and resolving these claims can extend the probate process.
The length of an intestate probate case can vary widely depending on the specific circumstances and jurisdiction. While some probate cases without a will may be resolved relatively quickly, others can stretch for years.
Does a will have to go through probate?
“Does a will have to be probated?” is often asked of estate lawyers.
The answer to “Does a will need to be probated?” is yes, with one exception. In Washington, estates worth less than $100,000 usually do not need to be probated.
However, for estates valued over $100,000, one of the most effective ways to avoid probate court is to create a revocable living trust.
The advantages of avoiding probate with a revocable living trust include the following:
- Beneficiaries may receive and benefit from the assets much sooner than they would through the probate process.
- Maintaining privacy because the details of a trust are private, whereas when a will is in probate, it becomes part of the public record.
- The administration of an estate in probate can be costly compared to a trust.
- If you own out-of-state property, a revocable living trust ensures your heirs avoid the hassles of ancillary probate.
- If the grantor becomes incapacitated, the successor trustee can immediately step in, help with finances and home upkeep, and ensure loved ones are cared for promptly, avoiding living probate.
However, the main benefit of avoiding probate with a revocable living trust is that it saves your heirs time and money.
Hopefully, you now have the answers to “Do wills have to be probated?” “Is probate necessary if there is no will?” and “How long does probate take without Will?” For answers to all of your estate planning questions or to start an estate plan, please reach out to Harbor Law Firm.
Harbor Law Firm makes the estate planning process as simple and stress-free as possible. Along the way, we’ll answer any questions you may have, such as “What is the difference between a living trust vs will?” and “Do all wills go through probate?”
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