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A Discussion About Probate, Part I: What Happens When a Loved One Dies?

Posted by Judy Nakashima Shoji | Jan 22, 2021 | 0 Comments

This article is the first part of a three-part series on probate.

The phone rings. Fighting back the tears, you cannot believe what you've just heard. A beloved family member has died. As you manage your emotions, you may also begin to wonder what your legal next steps should be.

More likely than not, that next step will be probate. But you wonder, since there is a will, is probate still necessary?

The most common misunderstanding I run into in estate planning is that people believe having a will allows them to avoid probate. That is not the case. Having a will requires probate to implement the deceased person's written intentions.

Probate is not the end of the world. In fact, in the State of Washington, probate is a relatively seamless process that I can guide you through. 

What is probate, and when is it required?

Probate is the court-supervised process of authenticating a will if the deceased made one. It includes locating and determining the value of the person's assets, paying their final bills and taxes, and distributing the remainder of the estate to the rightful beneficiaries.

In cases where there is no will, the court will require probate to pay the decedent's final bills and distribute their assets according to the Washington State's intestacy statutes. The steps involved are generally very similar, regardless of whether a will exists or not.

Step 1: Authenticate the will.

The will should be filed with the probate court as soon as reasonably possible. Usually, the filing of a petition to open probate is simultaneous. It is necessary to produce a certified copy of the death certificate with the will and the petition.

Step 2: Appointment of the executor or a personal representative.

The judge will appoint an executor, also called a personal representative (if there is a will) or administrator (if there is no will). This individual will oversee the probate process and settle the estate.

Listed in the will is the decedent's choice of an executor. The court will appoint next of kin if the decedent didn't leave a will, typically the surviving spouse or an adult child. This individual isn't obligated to serve. They can decline, and the court will then appoint someone else.

The appointed executor will receive authority from the court to act and enter into transactions on behalf of the estate via Letters Testamentary (if there is a will) or Letters of Administration (if there is no will). 

Step 3: If you have been appointed as an executor, decide whether to accept the job.

Agreeing to be the executor of an estate is a bigger decision than most people realize. It is important to consider the responsibility of the position before deciding to take on the role.

Below are four things you should know before signing on for the job:

  1. While it is an honor to be selected as an executor, executing a will takes a lot of time and work.
  2. Make sure you can handle all that the position involves before accepting the responsibility.
  3. When deciding whether to accept the position, consider the complexity of the estate, whether you have the time to devote to the immediate responsibilities required, and the multitude of duties that come into play when the testator passes away.
  4. Many executors serve without pay. A person acting as an executor can receive compensation but at a reasonable rate approved by the court. 

We understand the pain of losing a loved one and how overwhelming having to manage all of these legalities can feel. We can help. Give us a call today so we can support you during this difficult time.

About the Author

Judy Nakashima Shoji

Judy prides herself on being approachable, down to earth and willing to answer any questions hr clients may have. She is a Seattle native. She attended the University of Washington, Tokyo University and Seattle University School of Law. She was a legal intern in the Civil Division of the Seattle City Attorney's Office and at Yasuda Fire and Marine Insurance Company located in Shinjuku, Japan. Judy advises clients in all aspects of estate planning, probate and adoptions. She also serves as a Title 11 court appointed investigator in guardianship cases for King County Superior Court. She cannot think of any areas in which she would rather practice. She invests in learning about her client's whole story which creates a friendly environment in which she can provide more effective assistance. Her goal is for her estate planning clients to walk away with a customized, detailed, realistic, and clear estate plan which will accomplish their wishes. Estate planning can be uncomfortable and confusing and her goal is to explain complicated legal options in a way that is easy to understand and clear. Her desire is to provide peace of mind and clarity for her clients while also giving them the information necessary to make well informed decision. Judy has been a member of the Elder Law and Real Property and Trust sections of the Washington State Bar Association and King County Bar Association. She has been a volunteer attorney with the King County Bar Association Neighborhood Clinic and Pro Bono Services for the past 14 years where she was recognized as volunteer of the month in October 2014. Judy is married with three children. Outside of work she enjoys traveling to sunny locations, exercising (HIIT and barbell classes keep her grounded) and spending time with the people (and animals) she loves.

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