Law

Is probate always required when someone dies?

Probate is a legal term that sounds scary and complicated. However, it is a common process. Probate is how some assets are passed from a deceased person to their heirs or beneficiaries.

Several factors go into whether probate is needed or not, such as the types of property, how it’s owned, and what state and federal laws are. And, with a bit of planning, you can reduce the chances of probate issues and sometimes avoid the probate process altogether.

What does Probate Actually Mean?

All probate is the process of legally passing assets from one person to another. It is a complex procedure for larger estates. However, it is a straightforward formality for most people.

A judge will give legal permission for the assets to be passed on regardless of whether there is a will or not.

Does Probate always Involve a Will?

A misconception about probate is that it always involves a will. That is not true. When a person does have a will when they pass away, probate legally requires the implementation of the provisions in that will.

However, the probate process can happen when someone doesn’t leave a will when they die and has property that requires distribution under inheritance laws.

Another way probate comes into play is if the deceased person had an account (retirement, life insurance) with a named beneficiary, but that person died before the owner of the benefit account. The courts require that the account goes into probate to be passed on to the person legally entitled.

Can I Avoid Probate?

With careful planning, it is possible to avoid the probate process. There are three major reasons why avoiding probate sometimes works out better for everyone.

  • Reduces legal fees
  • Avoiding estate tax
  • Protecting privacy

Ways to Avoid Probate

  1. A revocable living trust is the most common way people avoid probate. Your assets are placed in a trust, but you can continue to use those assets until you die. However, upon death, your assets in the trust get passed to the beneficiaries of your choosing just by operation of the trust documentation.
  2. Life instance policies pass assets and property without probate. The beneficiary on the policy receives the death benefits without the [probate] process unless that beneficiary dies before you.
  3. Some retirement and pension accounts transfer without involving the probate process. And, payable on death accounts work the same. Again, if the person named as a beneficiary dies before you, [probate] will then step in.
  4. Joint real estate passes outside of [probate]. It means two people own a property, and when the first dies, the property automatically goes to the second joint tenant.

Even if you end up in [probate] court, the process tends to be streamlined and not expensive. However, like most things in life, issues may arise that will change the entire [probate] process.

The Probate Process in Washington State

The formal [probate] involves the court system and will get tricky to navigate. The court will appoint a personal representative to handle the administration of the estate. It is a good idea for you to hire and name an experienced attorney or representative in your will rather than have the court or clerk appoint someone you don’t know after you’ve died.

Regardless of who chooses the representative, they must do the following things:

  • Assemble all of the assets of the deceased person.
  • Pay the bills of the dead person, for example, funeral expenses, hospital bills, and taxes.
  • Distribute any and all assets that are left over.

Filing a Will in Washington State

Washington State law states that you must file a will promptly after death (within 40 days). Regardless of whether the deceased person’s estate will be probated, it is required. When you file a will in Washington, you’re ensuring that your family and beneficiaries don’t have to deal with the [probate] process.

The will must be filed with the Clerk’s Office of the Superior Court in the county that the deceased person lived.

Do I need an Attorney for Probate?

Attorneys are always helpful when dealing with legalities and the court system, especially when necessary [probate] happens. Typically, [probate]attorneys represent the beneficiary of an estate or represent the estate itself.

A [probate] attorney helps to settle an estate and assist in the [probate] process by:

  • Collecting life insurance policy money
  • Determining inheritance tax
  • Paying inheritance tax
  • Identifying all the assets of an estate
  • Opening and managing the checking and savings accounts of estates
  • Getting property appraisals for property
  • Paying debts
  • Preparing and filing all court documents
  • Retitling assets for the beneficiaries

The decisions and circumstances around [probate] are unique in every situation. If you have questions or concerns about your legal case, Dickson Frohlich is available to clarify and answer questions so that you’re not going through the [probate] process alone.

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