IS IT ESSENTIAL TO AVOID PROBATE?

wantTo probate or not to probate, that is the question. The internet is full of useful, and not so useful, information. Countless articles are written about probate and estate planning from a framework of fear, not proactive organization. The avoidance of probate at all costs is a perfect example, especially in Washington state where our probate process is not as onerous as other states.

In our practice, we assist clients in all stages of the planning and implementation process. In general, "probate" is the process by which a will is put into action through approval of the court and a "Personal Representative" is given the legal authority to manage the process. If there is no will to follow, the law provides defaults for where assets go and who gets to be in charge. This is typically required for estates over a total of $100k or including any real estate. The probate laws, or statutes, provide us with a certain number of steps to follow at certain intervals in order to make sure that creditors are paid or cancelled out, that assets are gathered, and that the individuals entitled to receive inheritances, do, in fact, receive them. If there are disagreements or disputes, the probate laws give us a mechanism to figure those conflicts out, through the court or otherwise. The process should not be feared, but can be time consuming and confusing. An experienced probate attorney can guide you to understand whether you actually need to open a full probate for your loved one's estate or if there are other options available to you. They can also advise and lead you through each step of the process, letting you know what comes next and specific tasks you need to accomplish. An attorney can let you know if, as the Personal Representative, you have the authority or discretion to make certain decisions and what actions would likely violate the law or cause conflict with beneficiaries.

The cost of a probate varies greatly, mostly depending on the complexity of the estate, number of debts, and disagreements among beneficiaries. Each type of asset has its own requirements in the process, so a very valuable asset may be easy to deal with while a practically worthless asset may be a pain in the rear to clear out. In Washington, neither the State nor the attorney typically take or charge a percentage of the estate.  Attorneys generally charge their or their staff's hourly rate for work actually done on the project. You can minimize cost by ensuring that your loved one's assets, accounts, and affairs are in order and streamlined. A person with an up-to-date Will and beneficiary designations that aren't conflicting will have a much easier probate.

Also, if you want to eliminate court involvement and operate with a bit more flexibility (and often save money in the long run), you may transfer your assets into a revocable living trust. Assets in a trust avoid probate.  There are other, much more important, reasons to have a revocable living trust, but avoiding probate is also one of the minor benefits of having a trust in the state of Washington.  Even with a trust, some of the same process needs to be followed to "administer" the trust according to the terms within the trust.  For example, creditors still need to be paid or dealt with, assets still need to be inventoried and valued (or appraised), and beneficiaries still need to receive their inheritance as directed by the legal terms of the trust.  A step by step approach can make this process manageable. Again, getting legal advice about your rights and responsibilities regarding these steps, either as the fiduciary (Personal Representative, executor, trustee, etc.) or beneficiary, can prevent a huge deal of conflict and liability down the road and ease the stress of going through the process in general.

If a loved one has died without a current well-written will or trust, the world will not likely end even if their wishes are unknown or unmet as a result. However, the people left behind to deal with assets and issues do need to deal with them. Inaction can cause its own problems, such as leaving the deceased's name on accounts or real estate that eventually have to be dealt with, usually when someone wants to sell an asset and can't do it until the probate is in progress, or beneficiaries start complaining of mismanagement or unmet duties.

Megan Lewis Law, PLLC can provide you with the information, education, and legal advice necessary to take it all one step at a time. We can often conduct meetings virtually to continue our current social/physical distancing policies, for convenience, or because you live elsewhere in Washington. We can serve clients all across Washington state.  Complete a contact request for help with opening a probate, administering a trust, or getting estate planning put in place.

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