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The Role of a Will in Probate

The Role of a Will in Probate

If someone close to you is terminally ill or has recently passed away, or if you’re trying to make arrangements regarding your own affairs after you die, you may be trying to grasp the significance of the process known as “probate.” Probate governs the distribution of a deceased person’s assets in many situations; the role of a will in probate is crucial to understand.

If a deceased person has left a will, this will be the most important source of guidance regarding where their assets (and liabilities) will end up. However, there’s more to it than simply reading the document and following its instructions; the State of Washington sets out detailed legal requirements regarding the execution of wills.

We delve into these in a little more detail in this blog post.

Understanding the Role of a Will in the Probate Process

When a person dies, it’s crucial to determine as quickly as possible whether they made a will.  State law requires that you file it with the probate court within 40 days of the death, if it exists. The law does permit a testator to file their will with the court prior to their death, partly to ensure that the correct will is used.

A will can provide guidance with regard to various aspects of the probate process.

Naming the Personal Representative

The role of the personal representative is a significant one, as this person takes on many responsibilities throughout the probate process, particularly when it comes to administering the estate. It’s the personal representative’s job to ensure that the wishes of the deceased person are acted upon. This person will be responsible for paying the funeral bills, settling debts with creditors, and making sure the will’s beneficiaries receive their assets.

If you’re in the process of making your will, you should think carefully when selecting your personal representative. If no personal representative is specified, the probate court will appoint someone it deems suitable. If you’re struggling with this, it may be a good idea to consult with a lawyer about it.

Identifying Assets and Beneficiaries

One of a will’s best-recognized functions is the identification of the people who will benefit from it (the beneficiaries) and the property they stand to receive (assets). It’s particularly useful when a will makes note of heirlooms, rarely-used bank accounts, and other assets that might not be readily identifiable, as these might otherwise go unaccounted for. Similarly, it’s a good idea to make particular note of less obvious beneficiaries (such as charities) that a personal representative might otherwise overlook.

Asset Distribution

Most importantly, the will provides specific instructions regarding what should be given to whom. It’s crucial that this be done properly, as ambiguity over instructions here frequently forms the basis for bitter and protracted court disputes. The clearer your will is, the less involved the court will need to be in its administration.

Disputes Over the Validity of Wills

While wills generally simplify the probate process, a dispute over the validity of a will can make things significantly more complicated. Such a dispute may arise in a number of ways, including (but not limited to) those we discuss in this section.

Lack of Testamentary Capacity

Per a doctrine called “testamentary capacity,” not everyone is legally capable of making a will. If a person’s condition did not satisfy the requirements of Title 11.12.010 of the Revised Code of Washington (RCW) when setting out their intentions, their will may be deemed invalid.

Specifically, this means you must be at least 18 years old and of “sound mind.” You must have the mental capacity to understand the nature of the act of will-making, the nature and extent of your property, the identity of those who stand to inherit your assets, and the implications of distributing your assets in the manner you choose.

Undue Influence

“Undue influence” refers to situations in which testators are unfairly manipulated into including certain provisions in their will (typically by the beneficiaries of said provisions).

Say, for example, one member of a family threatens to stop carrying out household tasks in the family home unless a change is made to their parent’s will in their favor. Upset by this prospect, the parent agrees, and grants a bigger portion of their estate to the child in question than to their other children. A court would likely view this as undue influence, and could interject on behalf of the children who were disadvantaged in the will.

It’s important to note that undue influence can be very difficult to prove. If you feel you may have been unfairly treated in this way, you’ll need to work with a top-class probate lawyer to have a chance of making things right.

Fraud or Forgery

There are a number of ways in which a will could be interfered with via fraud or forgery. For example, a beneficiary might deceive the testator about the nature or contents of the document, or forge the testator’s signature.

Improper Execution

The State of Washington has specific legal requirements for executing a will; it must generally be typed or printed, signed by the testator (while they are of age and of sound mind, as discussed above), and signed by two witnesses who were present while the maker of the will executed it, and who witnessed each other sign the document.

If these formalities are not observed, the will may be contested on the grounds of improper execution.

Getting the Legal Help You Need With Probate Issues in Washington

If you’re preparing a will, or you’re having issues regarding the will of a family member, it’s important that you seek capable legal advice. Trying to cut corners when dealing with these kinds of issues could cause you a lot of hardship. A probate lawyer will be able to steer you in the right direction no matter what kind of problems you’re facing.

Contact Dickson Frohlich Phillips Burgess to learn more about how we can help you tackle probate issues. You can reach us via our online contact form or over the phone. Call (206) 621-1110 if you’re in Seattle, (253) 572-1000 if you’re in Tacoma, or (360) 742-3500 if you’re in Olympia.