Experienced Seattle Probate Attorneys
A Seattle probate law attorney can help you avoid the repercussions of not having an end-of-life plan. As probate attorneys, we can help you decide how you want your estate and finances to be managed after you are gone so you can have confidence in the knowledge that your loved ones will be provided for and your plans will be put into action. Our probate lawyers will handle your matters effectively, efficiently and professionally while providing you with excellent, personalized service.
Hiring a probate attorney in Seattle is all about trust. We earn the trust of our clients every day by educating them about the law, informing them about their options, creating strategies that work, executing legal documents properly, and ultimately seeing to it that our clients’ desires are put into action. Dickson Frohlich probate lawyers are here to help you and your family on a wide range of estate planning and probate matters.
Our Seattle Probate & Estate Law Practice Areas:
• Seattle Probate Attorney
• Last Will & Testament and Power of Attorney
• Undue Influence in Willshttps://www.dicksonlegal.com/estate-planning-attorney/
• Trust Accounting Litigation
• Defective Wills & Trusts
• Recovery for Financial Elder Abuse
• Probate and Administration of an Estate
• Litigation for Abused Will & Trust Beneficiaries
• Legal Guardianships
• Estate Planning Attorney
• Contested Trusts, Wills, and Probate Litigation
Understanding estates. Understanding the nature of probate in Washington State is essential when considering the retention of a probate attorney. This is true whether you’re looking for a Seattle probate law attorney or an estate planning attorney. Probate law governs what transpires with a deceased person’s property after death. The deceased person’s assets (possessions and property, in other words) are collectively referred to in the law as the decedent’s “estate.” This is true regardless of whether or not the contents of the estate are subject to the control of Washington’s probate laws. While the probate process is not technically required in all situations, it is nonetheless a wise process to follow. If done properly, the probate process can serve as a form of liability protection to the personal representative of the probated estate (often referred to as the “executor” or “executrix”) and make sure that the estate’s property is properly distributed to the heirs.
What role does the personal representative play? The principal responsibility of a personal representative is to collect the assets of the decedent, pay debts and taxes and ultimately distribute remaining assets according to the dictates of the will. The process is also designed to protect existing creditors of the decedent and to effectively and definitively establish the beneficiaries’ rights as to the decedent’s assets. If a deceased person did not create a valid will in life, the assets remaining in his or her estate will be distributed according to Washington State’s probate statute. (RCW 11 contains the State’s directives regarding both probates and trusts.)
Understanding the difference between an “intestate” and “testate.” If the decedent had prepared a will in life, he is said to have died “testate,” while if he did not prepare a will, he will have died “intestate.” While the law in Washington State is straightforward when it comes to the distribution of an individual’s assets/property in an intestate probate, it is distinctly better to have properly created a last will and testament in life, so as to control how one’s assets are distributed after death. Generally, the law calls for the next of kin to obtain the assets of a person who dies “intestate.” If that’s not what you want, you need to do some estate planning so the people or organization you want to support after your death actually get it.
Probate and non-probate assets, how do they differ? In Washington state, RCW 11.02.091 describes which assets are subject to the probate process. The most common types of non-probate assets are as follows:
(A) Accounts established between the decedent and another individual which contain a “right of survivorship” clause (these are commonly joint bank accounts)
(B) Property that is owned in “joint tenancy” (with rights of survivorship)
(C) Assets which are subject to community property, presuming the existence of a marriage, or controlled through a community property agreement
(D) Life insurance policies with a designated beneficiary clause directing to whom the proceeds will be issued (presuming, of course, that the designated beneficiary is not the estate itself)
(E) Any other assets which are controlled by the designation of a beneficiary – similar to that of a life insurance policy (for instance, a 401(k) or other investment accounts which designates a specific individual as the beneficiary in the event that the holder of the account dies).
It is important to note that the decedent’s “estate” will often contain both non-probate and probate assets. The difference between the two designations is that non-probate assets are governed by the terms of the instruments (i.e., contracts) which created them, while probate assets are governed by the written will of the decedent or state statute in the event that no will exists at the time of the decedent’s death.
Which courts oversee probates? In Washington State, the Superior Courts hold the proper jurisdiction to administer the probate process. According to RCW 11.96A.050, the circumstances surrounding the potential probate govern which county is appropriate one in which to initiate the probate process. Specifically, probate should be started in the county where the decedent (1) resided, (2) died, or (3) where the property owned by a nonresident decedent happens to be located.
Common mistakes in estate planning
(Or what not to do when preparing your wills and powers of attorney)
- Not having one. The first and most obvious mistake in estate planning is simply not doing any. As the old saying goes, “Nothing can be said to be certain except death and taxes.” In the context of estate planning, one could revise that saying to be “Nothing can be said to be certain except death and taxes…and that someone is going to get your stuff after you die.” In other words, whether you plan ahead and designate heirs or you let the state decide who is to receive your property after you have passed, your property will be distributed to others. Having a well-planned and well-thought-out estate plan will ensure that your assets go to those whom you wish to receive them. If you want part of your assets to support a nonprofit organization, you need to make a donation during your lifetime or use estate planning to provide that support after you pass away.
- Failing to keep your estate plan current.Once an estate plan is created, it should be revisited at times, for the duration of your life. The reason for this is obvious: life changes. Often, the intended heirs to an estate will die themselves or come into substantial fortunes of their own. Over time you may encounter causes and people you want to support, and your family may grow. Relationships change, and people who were close to you may no longer be in the picture. Estate planning ought to take these factors into account to minimize conflict and maximize the benefit of the bequests.
- Failing to plan for incapacity. While preparing a will is obviously important for the distribution of one’s assets after life, one should prepare for incapacity during life as well. The primary vehicles for these types of situations are Powers of Attorney. These documents come into effect when an individual can no longer make decisions for himself. The most common types are “financial powers of attorney“ and “health care powers of attorney.“ As the names suggest, a financial power of attorney grants an individual authority to control an incapacitated person’s finances during the time that the incapacity persists. Health care powers of attorney operate in the same fashion, but for matters relating to physical health care decisions. Note that one exception is a “health care directive“ (also referred to as a “living will“). A healthcare directive essentially provides direction to healthcare providers if they believe the incapacitated person is unlikely to ever recover. These can be tremendously valuable, as they take the often emotionally painful decision out of the hands of grieving family members. This directive allows you to make the choice regarding costly health care treatment for yourself.
- Failing to have clarity. An estate plan should contain simple, clear documents. They should outline, in unambiguous and direct terms, how the assets of the estate are to be distributed. Creating complicated or confusing methods of distribution, or strange conditions that heirs must satisfy, will typically (or perhaps inevitably) lead to discord and potential litigation over the purpose of the testamentary document. Wills should thus be elegant in their construction.
- Failing to recognize the implications on your estate of certain asset features outside the will. One of the most common effects outside a will is a “right of survivorship“ provision in joint or shared accounts. A right of survivorship assures that if one member of a joint account should die, the contents of that account automatically go to the surviving account holder. A will has no effect on this sort of non-probate asset. Be sure to identify any shared assets of this sort and designate them with the appropriate rights.
- Creating or altering a will for the wrong reasons. Undoubtedly, there will be moments in life, where parents, family members, or even friends, disappoint one another. There is a tendency, in the heat of those moments, to want to make a change in one’s estate plan to exclude the individual who caused the disappointment. That may be appropriate in some circumstances, but often it is inappropriate and sends an entirely wrong message to those we share our lives with. Even though there may be a time when it is appropriate, completely excluding someone from an estate should be done only after deep reflection about that individual and the associated circumstances.
Mental Capacity and Estate Planning
RCW 11.12.010 establishes a broad category of individuals who may create a will: “Any person of sound mind who has attained the age of eighteen years may, by last will, devise all of his or her estate, both real and personal.” This is similar to capacity in contract law, in that the maker of a will must be an adult, and be “of sound mind.” That standard is tragically incomplete, however, and begs the question: “If having a sound mind is a prerequisite, who decides?”
The bar for forming a will is notoriously low. For a testator (the maker of the will) to be deemed to have the capacity to execute a will, he must—
1. Have the mental ability to comprehend the “nature and extent” of his property; AND
2. Be able to understand to whom his property will be gifted after death (plus their relation to him); AND
3. Comprehend the nature of the bequest—that the beneficiaries of his estate are the individuals who are receiving his property.
Put another way, if you can understand what you own, whom it’s going to, and that the will is the vehicle which accomplishes that aim, then you likely have the mental capacity to create a will.
Given the low bar for testamentary capacity, one would assume that the law requires an evaluation from a medical professional to verify capacity. That assumption would be incorrect. All that is required for testamentary capacity is that the above-outlined standard is met at the time that the will is signed. While it does not explicitly authorize attorneys to be the arbiters of mental capacity, they often find themselves as the line of defense when it comes to mental assessments of their clients. Therefore, it is always a best practice to consult with an individual’s physician, if possible, to ascertain the mental health status of a potential testator.
Understanding and Preventing Undue Influence in Creating a Will
Provided a will contains the required statutory components (i.e., it is executed in writing, signed by the testator, and properly witnessed), it is presumed valid regardless of its contents. Washington State courts recognize a strong individual right to direct what transpires with one’s assets after death. Because of the degree of deference afforded wills, some individuals seek to influence a testator to their advantage. While “mere persuasion” is not prohibited in law, when it rises to an extreme level, it may be deemed undue influence.
Proving that undue influence occurred in the creation of a will requires certain specific factors to be met. First, the level of undue influence must be significant, to the extent that the free will of the testator is destroyed. Second, the party challenging the will must show that the undue influence caused the testator to create a will that differs materially from what otherwise would have been made. In other words, if the undue influencer would have gotten no more from the estate than what he would have without the undue influence, then it is of no effect. Last, the alleged undue influence must be more than “mere persuasion.” It is not unlawful to use common persuasion to impact a person’s testamentary wishes.
To prove an undue influence claim, the challenging party bears the initial burden of showing that such influence is more likely than not (a preponderance of the evidence). However, if undue influence is proven, even for only a part of the will, the ENTIRE will is deemed invalid. An invalid will requires that the court look to earlier wills or proceed through probate with no will.
Common Probate Protections a Seattle Probate Law Attorney Can Provide
Seattle real estate attorneys and law firms know that while a decedent’s will largely controls what occurs with his or her property, there exist legislative protections for certain classes of individuals that may be applicable. As one might imagine, those safeguards are directed primarily at close relatives who may have been omitted from a will.
Community Property: Protection for a Surviving Spouse
Washington State treats property “acquired after marriage“ as “community property.“ Attorneys practicing probate law (especially in the Seattle or Tacoma area) must be mindful of the impact of the community property law on wills. RCW 26.16.030 defines community property, which essentially creates certain protections for surviving spouses who may have inadvertently been omitted from a decedent’s will. Separate property is distinguished from community property, in that it is “all property acquired before marriage“ and maintained as separate throughout the marriage. See RCW 26.16.010,.020. Separate property also includes any property “acquired after marriage“ by virtue of a “gift.“ Gifts are considered anything that is given to an individual, in life, without contemplation of an exchange of consideration in return. Receiving a distribution from a will (usually through the probate process) is considered separate property so long as there is no “commingling“ of those assets with the existing marital community assets. Seattle probate lawyers must understand the delicate, and sometimes difficult to interpret, relationship that married couples have with both their community AND separate property.
Once the character of the property is established, the next question is “What can and cannot be disposed of through the dictates of a decedent’s will?“ According to RCW 26.16.030, a spouse is entitled to give away his “one-half” interest in the community property. (Note, however, that there are potential limitations: If the character of the community property is one that has been enjoyed or used for the lifetime of the marriage, both spouses may be required to consent to disposal of those assets. Probate attorneys in Seattle, especially those with a wealth of experience in probate matters, should be able to analyze the nature and disposition of the property and provide advice on what qualifies for protection under these provisions.) While there may be limitations as to a decedent’s disposition of his or her share of the community property, separate property has no such limitation. Separate property is fully controlled by the decedent and completely open to the dictates of the will (and, thus, disposable).
Omitted Child Statute—RCW 11.12.091
Another difficult issue that probate law firms in Seattle face is that of a child that appears to be disinherited inadvertently. Generally, decedents have broad control over how their assets are distributed after death. There is no statute or common law that states that parents cannot disinherit a child. However, if a probate lawyer in Seattle (or anywhere else in the state for that matter) encounters a situation where it appears that a child has been targeted for disinheritance, he or she can look to the intent of the testamentary document (will) for guidance. There must be “clear and convincing evidence“ that the omission of the child from the will was “intentional” for it to ultimately stand.
When preparing an estate plan, a wills and trusts attorney is limited by the natural realities of time. Thus, an individual may establish a will, distributing assets between and among his children, and then later in life have additional “issue.“ Obviously, assuming all things are equal, if the testator dies before updating his or her estate plan, then it is highly unlikely that the disinheritance of that child was purposeful. See RCW 11.12.091. The Omitted Child Statute was created to address just such a scenario. According to the statute, for the law to apply, the child in question must be (A) born or adopted after the “execution“ of his parent’s will, and (B) alive at the time of the testator‘s death (in other words, survives the parent who has died).
Seattle probate law attorneys must understand the profound impact that this law may have on the administration of a decedent’s will. An “omitted child“ is deemed to be eligible to receive essentially the same proportional disposition that his or her siblings are to receive. (A classic example that Seattle probate lawyers often face is when the will distributes the decedent’s assets in equal portions amongst the living children, as identifiable at the time of the execution of the will. Then, the decedent has another child, but no provision is made for him. In that situation, it is likely that the omitted child would fall under the protections of RCW 11.12.091.) While there are factors which may impact the ultimate distribution of the estate assets, generally, an omitted child will be entitled to whatever his equal share would have been, as compared to that of his or her siblings. (It should be noted, however, that often times an individual will make nonprobate arrangements for the child in question. This can take the place of what otherwise would have been distributed pursuant to a will. A common example of this is when a person designates a child as the “designated beneficiary“ to an investment account.)
While nothing can replace the care that you provide your family, creating a will can give you peace of mind.
Should you find yourself serving as a personal representative (executor) of an estate, hiring an experienced probate attorney to guide you in administrating the estate or probate process is vital. Probate can be complex and intimidating. If you make a mistake, it can be costly, too. With the assistance from a Seattle probate law attorney, you can have confidence in the knowledge that your loved one’s estate is being managed properly and that you will be secure from personal liability.
No matter the probate issue, Dickson Frohlich has over 100 years of experience helping people make and deal with final and personal arrangements.
We are the legal consultants to turn to for help with any estate or trust issue, as well as drafting your personal will, trust documents, powers of attorney or healthcare directive.
our Tacoma office at 253-292-5124 or our Seattle office at 206-866-2594
Our probate services include the following:
Seattle Washington Probate Attorneys
- Explaining the legal process after a relative has passed on, and postmortem estate planning
- Assisting you in filing a will
- Protecting your assets for heirs/beneficiaries
- Assistance with contesting a will, including claims of undue influence
- Representation in probate, estate, and trust litigation
- Formal and summary probate administration
- Estate and trust administration
- Representation of personal representatives
- Appointment of a special administrator
Discover What Makes Dickson Frohlich Probate Lawyers Different:
- Experience teamed with compassion – We understand that you and your family may be going through a very difficult time. Making your final arrangements or coping with the estate of a loved one can be very stressful. Probate disputes, on top of the loss of a loved one, can result in family relationships going from bad to worse. Put our decades of experience as probate lawyers to work for you. Our thoughtful, accurate and timely handling of your loved one’s personal and financial matters will help smooth the process and reduce stress as much as possible. You can confidently leave the court filings, paperwork, tax issues, phone calls, inventorying, etc., to us, leaving you to live your life and focus on your family.
- Skilled attorneys – Estate planning and probate are highly specialized areas of law. Over the years our attorneys have developed the skills and experience needed to help you and your family get the results you seek in as timely a manner as possible. Retaining the services of an attorney who handles these matters only as a small part of his or her practice may result in headaches you want to avoid. Don’t hire an attorney who will be learning while working for you.
- Affordability – Estate planning and probate help isn’t just for the wealthy. Dickson Frohlich is committed to providing great service in all areas of probate, trust and estate planning at affordable rates. At this stressful time, don’t let unexpected legal fees add to your worries. At Dickson Frohlich, we never hesitate to provide a quote for our services over the phone
For more information or to discuss your special concerns, just call our offices in Seattle or Tacoma for a FREE phone consultation at 206-866-2594 or 253-292-5124. We look forward to working with you.