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What you should know about Probate ...

Probate is a state-regulated legal process that is triggered upon the death of an individual that distributes all of the assets of the decedent and provides a process for any dispute resolution. Probate in Washington is entirely discretionary, and a small percentage of deaths in Washington result in filing of a probate. If a probate is filed in Washington State, it is because someone wants it to be filed and not because Washington law mandates it.

As an attorney working in estate planning, I am sometimes asked by the court or recruited by another attorney or the personal representative identified in the will of a deceased individual to oversee the probate process. Through the probate process, the assets are listed, debts are paid, and the remainder is distributed to the identified legal heirs of the decedent.

Washington State statutes provide guidance for both attorneys and personal representatives that includes expectations and guidelines for duties. In the absence of a trust that may direct the estate assets and assuming the decedent has an executed Last Will and Testament, the terms of the Will dictate how the assets are distributed and usually designates a personal representative to administer the decedent's wishes.

If no Will has been executed during the decedent's life, the probate process dictates how the assets are distributed, including fees for administrators and attorneys. In addition, the court appoints someone to serve as the administrator when there is no Will or no one named in the Will.

If there is a will and if a personal representative is identified in the will, that person is appointed by the court as the administrator, assuming there is no objection. This personal representative, sometimes working with an attorney, manages the probate. The court requires notification of potential heirs and creditors and provides a process for allowing distribution of assets. Sometimes the court grants the administrator the power to administer the probate without further intervention of the court, but occasionally the court will monitor the process closely, possibly appointing an attorney administrator. The personal representative / attorney must obtain court approval of most actions.

If someone feels that the decedent's Will was not validly executed, they have the right to contest the will according to Washington's defined legal process. Once all the disputes are resolved, the court will then close the probate and distribute assets and distribute fees as reported to the court.

Proper estate planning is designed to minimize or remove the likelihood of probate. Avoiding probate reduces administrative costs and expedites and facilitates the transfer of inheritance as dictated by the decedent's wishes.

For additional probate-related information, see the Frequently Asked Questions (FAQs).

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