Probate 101

By Kendel Froese | August 2, 2022

When someone passes away, their estate may need to go through a legal administration process called probate. The basics on this post will be particularly useful if you are designated as someone’s personal representative (also commonly known as an executor) or if you petition the court to administer the estate. As a personal representative or administrator, you are the person responsible for petitioning the court to open probate, receiving the necessary documentation to start cashing out and moving around assets of the estate, providing notice to creditors, and gifting assets to beneficiaries as directed in the Will of the person who passed away (or, in accordance with the state law provisions for which heirs receive what amount if the person passed away without a Will).

Q: If my loved one just passed away and they had a Will, we don’t have to mess around with probate, right?

A: Unfortunately, I have to give a classic attorney answer here: it depends. A common misconception I hear from folks is they think once they execute a Will, their estate doesn’t have to go through the probate process when they die. This can be true if there are other circumstances present, such as if the value of the probate assets in the decedent’s estate (the person who passed away) is not more than $100,000. Assets such as life insurance policies, retirement accounts, et cetera, are considered nonprobate assets that pass outside of a Will, so they don’t count towards the $100,000. If the probate assets don’t exceed $100,000, then a small estate affidavit, which allows the decedent’s property to be accessed without having to open probate on the estate, can be a good alternative. The biggest reason why probate needs to be opened is to allow the personal representative (AKA the executor) or administrator (same job as the personal representative but called an administrator if the person died without a Will) to access, cash out, move around, etc., the decedent’s assets - which explains why probate might still be necessary even if the person who passed away executed a valid Last Will & Testament.

Q: Doesn’t probate take forever? What does the probate process actually entail?

A: In Washington, probate can actually be a pretty quick process. The initial process of petitioning the court to open probate on the estate doesn’t take too long, and usually requires just a couple hours at court after the required documents have been drafted, signed, and notarized as necessary. The court’s order to open probate is what directs the court clerk to issue Letters Testamentary or Letters of Administration (depending on whether the person died with or without a Will, but both Letters do the same thing - grant authority to the personal representative/administrator to access, cash out, move around, et cetera, the decedent’s assets) .

What often takes the most time is giving notice to creditors of the person’s death and providing the opportunity for the creditor to file a claim with the estate. The statute of limitations for a creditor claim against an estate is two years after the date of the person’s death. However, this notice to creditor’s statute of limitations can be cut down to four months if a notice is published once a week for three weeks in a row in a newspaper published in the county where the person died. That four-month clock starts ticking the date of the first publication of the notice to creditors.

Q: A loved one just passed away, and they named me as their personal representative in their Will. What do I do first?

A: You don’t have to decide immediately, but my recommendation if you choose to work with an attorney and have them petition to open probate, publish the notice to creditors, et cetera, is to make that decision sooner rather than later. While certainly workable, it can unnecessarily complicate the process when a personal representative starts the probate process and an attorney ends up taking it on. There are reliable resources available if you choose to open probate and administer the estate on your own. I recommend using the resources at King County Probates or Washington Probate.

Q: What if I have more questions?

A: Check out the resources linked above, King County Probates or Washington Probate. You can also schedule a meeting with me and I’m happy to discuss the process with you and your options on how to move forward. Probate is one of my main practice areas here at Thrive Law, and while it is possible to undertake this work on your own, I understand there are often complex and difficult emotions when someone has passed away, and I would be honored to do this work for you and for your loved one who has passed.