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

Posted by Unknown | 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.

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