Experienced Seattle Probate Attorneys
Most people fail to consider the repercussions of not having an end-of-life plan. Decide now how you want your estate and finances managed after you are gone, and have confidence in the knowledge that your loved ones will be provided for.
Our Seattle Probate & Estate Law Practice Areas:
• Seattle Probate Attorney
• Last Will & Testament and Power of Attorney
• Undue Influence in Wills
• 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 attorney or estate planing 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. While the probate process is not necessarily 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 to make sure that the estate’s property is distributed to the heirs properly.
What role does the personal representative play? The principal responsibility of a personal representative is to collect the assets of the decedent, and ultimately distribute them according to the dictates of his or her 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.” Now, while the law in Washington state is straightforward when it comes to 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.
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 prcoeeds 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 account, 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 to initiate the probate process. Specifically, a 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/of estate planning is simply not doing any. As the old saying goes, nothing can be said to be certain, but death and taxes. In the context of estate planning, one could revise that saying, to include “nothing can be said to be certain, except death and taxes…and 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.
- Failing to keep your estate plan current. Once an estate plan is created, it should be revisited at times, for the duration of one’s 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. 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 and individual authority to control an incapacitated individual’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 potentially litigation over the purpose of the testamentary document. Wills should thus be elegant in their construction.
- Failing to recognize the implications of certain asset features outside the will on your estate. 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. While it is not to say that there aren’t times where is appropriate, completely excluding someone from an estate should only be done 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 that 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 capacity, 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, who 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 be 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 individuals 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.
Undue influence transpires when a person (or persons) exert power or influence over a testator (the person making the will) in such a way as to essentially usurp or take away an individual’s free will. Given that wills are commonly formed towards the end of a person’s life, when the testator may be dealing with the natural difficulties of old age, undue influence is a common approach to invalidating a will. Due to this diminished capacity, it is not surprising that unscrupulous individuals may seek to take advantage, and thus judicial protections against such influence are also necessary.
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
Seattle real estate attorneys and law firms know, that while a decedent’s will largely controls what occurs with the 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 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 potentially 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 dispose 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 maybe 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 trust 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 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) is alive at the time of the testator‘s death (in other words, survives the parent who has died).
Seattle probate 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’ve been, as compared to 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. With assistance from an attorney, you can have confidence in the knowledge that your loved one’s estate is being managed properly and provide you with security 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.
our Tacoma office at 253-572-1000 or our Seattle office at 206-621-1110
Our probate services include the following:
- 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 Different:
- Experience teamed with compassion – Making your final arrangements or coping with the estate of a loved one can be very stressful. Put our decades of experience serving probate clients 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 calling, inventorying, etc. to us.
- Affordability – 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.