Tuesday, January 13, 2015

Probate In Depth



PROVING UP A WILL

      The Oxford English Dictionary defines probate as the official proving [up] of a Will. The origin is late Middle English: from Latin probatum 'something proved'.  Washington State has a self-proving affidavit statute (RCW 11.020.020(2)) which makes proof of the identity and competence of a Testator (a person who makes a Will) unnecessary.  A person is competent to make a Will at age 18, so long as a person can answer two questions:  (1) are you married?; and (2) do you have children?  If you don't know the answers to these questions, you should not be making a Will.  The historical proving up of identity and competence has been largely made
 moot by photo ID and literacy.  For most of human history, most people could not read.

      Proving up assets and debts is a much more common issue than proving up identity and competence.  The Personal Representative (gender neutral term now used instead of Executor for male administrators, and Executrix for female administrators) of an Estate (every right and obligation of a deceased person) has several duties.  One of the most important duties is to create the inventory of assets and debts.  It is the inventory that determines whether an estate is solvent (more assets than debts) or insolvent (more debts than assets).

NO WILL - INTESTACY STATUTE
       If a person dies without a Will, that person is said to be intestate.  The Washington State legislature has in intestacy statute (RCW 11.04.015) which creates the order of distribution for an intestate estate.  The distribution is essentially to your "next of kin."  As a series of questions.  As soon as you get a yes answer, stop.  All people with the same level of relation to the decedent (consanguinity) share equally.  The questions go as follows:  Are you married?  Do you have children?  Are your parents alive? Do you have siblings? Do you have cousins? Nieces & Nephews?

      Intestate comes from the Latin intestatus.  Formerly, it wasused in France indiscriminately with de confess;that is,without confession. It was regarded as a crime, on account of the omission of the deceased person to give something to the church,and was punished by privation of burial in consecrated ground.This omission could be repaired by making an ampliative testament in the name of the deceased


INSOLVENT ESTATES
    
       For insolvent estates, no probate is necessary.  Bankruptcy is not available for Estates of deceased persons.  I simply write a letter which states that no assets remain after taxes, burial or cremation, and final medical bills have been paid.  Creditors cannot collect and write off the debt as a loss.

SOLVENT ESTATES WITH NO REAL PROPERTY
      If there is no real property involved, then probate can generally be avoided through the use of an Affidavit of Small Estates, so long as the value of the assets is under $100,000.   

Northwest Justice Project has prepared a  Do It Yourself Affidavit Procedure for Small Estates for estates under $100,000.

Northwest Justice Project Do It Yourself Guide to the Affidavit of Small Estates.pdf
102.5 KB

SOLVENT ESTATES WITH REAL PROPERTY

      If an Estate has real property or the value of assets exceeds $100,000, then probate will be needed unless the assets pass in some other way.

JOINT TENANCY WITH RIGHT OF SURVIVORSHIP

     If property is titled in Joint Tenancy with Right of Survivorship (or as Community Property), then no probate is generally necessary.  Since Washington is a Community Property state, no probate is typically necessary when one spouse dies.
BENEFICIARY DESIGNATIONS

     IRA's, 401(k)'s, life insurance, and some bank and investment accounts have a beneficiary designation.  So, long as the beneficiary is alive and at least 18-years-old, that beneficiary will take the asset without Probate.

PROBATE

      Probate is the court recognized process for transferring assets out of a deceased person's  name into a beneficiary's name where no other process exists.  Probate is about protecting the rights of beneficiaries and creditors and preventing what amounts to grave robbing if there isn't an organized process for disposition of the property of the deceased.  

     Below is a link to the leading source of probate information in Washington State, including all necessary forms.      http://www.wa-probate.com/       

LETTERS TESTAMENTARY/LETTERS OF ADMINISTRATION

      In order for the Personal Representative  to administer the Estate of a deceased person, typically Letters are required.  Letters are issued by the Court after being requested in a Probate petition.  Below is a sample.  Letters of Administration are issued if there is no Will (Intestate).  Letters Testamentary are issued if there is a Will (Testate).  The powers of the Letters are the same.  The person who makes a Will is called the Testator.

Sample_Letters_Redacted.pdf 60.7 KB      

          
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                                                   UNCLAIMED PROPERTY    


       Above is the banner from the web site of the Washington State Unclaimed Property Registry.  The image is a link to their web site at:    http://ucp.dor.wa.gov/aboutUCP.aspx    

        It is important to keep a list of your property, so that your Personal Representative can administer your estate without missing anything and adding to the unclaimed property registry. You can look to see if you are a beneficiary of anything.


 14205 SE 36th St Ste 100
Bellevue, WA 98006-1553
www.mulvaneylawoffices.com
Phone: 425-649-1190
Fax: 425-223-3197

chris@mulvaneylawoffices.com