Do You Have to Do Probate When Someone Dies?

A term frequently heard after someone dies is “probate.” Probate is the legal process used to administer a deceased person’s estate by gathering assets, settling debts, and ultimately providing financial distributions to members of the family. As a judicial process, the probate judge is essentially providing legal oversight of the transfer of assets to others, whether or not there was a final will. When a loved one passes away, it’s common to wonder whether you have to go through the probate process.  While technically, it isn’t automatically mandatory in Washington state, the practical realities of dealing with an estate’s creditors, heirs, and other interested parties means that using the probate process is a must.

Do You Have to File Probate When Someone Dies?

As a process, probate is broadly applicable. Many people think of probate as a process that is required when there is a will. But probate can also be involved if a person passes away without a will and has real property that needs to be distributed under the laws of intestacy (the law that dictates how a person’s assets are distributed when he or she does without a will in place).         .

In some states, such as Washington, some estates need to go through probate, but not all do. It may be beneficial to you to go through the probate process even if it is not required. It also is key to understand that states such as Washington do require you to file existing wills in court, regardless of whether you’re filing a probate. This must be done within 40 days of the death of your loved one, so there should be no delay in finding and filing a will if you think the decedent prepared one.

If you do decide to go through probate, it is probably because you want help with some of the complicated legal and financial issues that arise. It is recommended that you file for probate if your loved one left any personal property and assets worth in excess of $100,000 OR if they owned individually any real property that is impossible to transfer by any other means.

Some other valid reasons to file for probate when someone dies are:

• The decedent’s estate was insolvent (meaning the value of the estate is less than its debts), and you want to have the debts with creditors settled in court.
• You intend to dispute matters in the will or any other matter pertaining to the estate.
• You have questions about who a beneficiary or heir is.
• There are open questions about one of the properties in the will.
• You intend to challenge some creditor claims against the estate.
• You want the court to provide access to the decedent’s safety deposit box.
• There were legal actions still pending regarding the decedent.

So, Do You Have to Go Through Probate?

If any of the above or other complex matters exist in administering the decedent’s estate, it often is best to engage in the probate process. This step can offer guidance throughout administration and can assist in the avoidance of liability for you if you are the personal representative of the estate. Also, remember that if the deceased owned property, there is no way for beneficiaries to obtain legal ownership of it unless they go through probate. As noted earlier, in some states, such as Washington, probate is highly desirable if there are property and assets worth more than $100,000. Specific requirements for going through probate depend upon the state of residence of the deceased.

Deciding whether to go through probate when someone dies can be a complex question. If you have additional questions, it is wise to speak to an experienced probate attorney who can thoroughly evaluate your legal situation.