Tacoma Probate Attorneys
After a person passes away, probate is the process the court uses to close an estate. There are many steps of the probate process and probate can be complicated if anyone raises legal disputes in regard to the will of the deceased person.
Having a lawyer who is knowledgeable about probate laws in Washington can help save you time, energy, and stress during this process. Our team of skilled probate attorneys at the Dickson Frohlich regularly handle the following matters related to probate:
- Last Will and Testament
- Power of Attorney
- Legal Guardianships
- Trust Formation
- Estate Planning
- Financial Elder Abuse Recovery
- Probate and Estate Administration
- Trust Accounting Litigation
- Undue Influence in Wills
- Defective Trusts and Wills
- Contested Trusts and Wills
- Probate Litigation
- Litigation for Abused Beneficiaries of Trusts and Wills
When a loved one passes, it is often difficult to have to deal with the inherently bureaucratic tasks of distributing his or her estate assets (and taking care of any lingering creditors). Probate attorneys cultivate specific practice approaches to both effectively facilitate an accessible probate, but also, to do so in a way that is sensitive to the clients’ recent loss.
It also happens to be the case, for most individuals, that dealing with a probate (and probate attorney) is infrequent. Obviously, that is a good thing. Thus, the probate process itself is somewhat of a mystery. Hopefully, the contents of this section will help acquaint the reader with a basic understanding of both the probate process itself, but also when a probate is needed.
SUMMARY OF THE PROBATE PROCESS
In practical terms, a probate can be seen to take place in basically three stages. The length (and costs, frankly) of a probate is directly related to its level of complexity. Therefore, as you read through the stages the below, bear in mind that the actual effort required in moving through them is highly dependent on the character of the probate, and contents of the decedent’s estate.
Three Stages of a Probate
The first stage of the probate process involves a probate attorney preparing the necessary initial documentation that will be filed with the court. While not all of those pleadings are described here, they include such things as the petition to open the probate, the oath of the personal representative (executor basically), and the proposed order appointing/approving the personal representative. In essence, these pleadings serve to engage the courts, and perhaps most importantly, to have the court recognize the proposed personal representative of the estate. (While the probate attorney may do much of the legal leg word in a probate. It is really the personal representative who is vital to its successful administration. The personal representative is the person designated in the decedent’s will, who is to act in the official capacity on behalf of the decedent in carrying out the specific dictates of the will.)
The initial stage described above typically takes the most effort from a probate attorneys’ standpoint. This is due to the fact that not only is he called upon to draft specific probate documentation, but he may have to appear before the court as well. What’s more, there are subtle, though extremely important, notice requirements included in the initial stage as well. Part of the reason why engaging a probate law firm, or perhaps at least a probate attorney, is because even though the process may appear simple on the surface, it can be deceptively complicated when all of the various elements are examined together.
The second stage of a probate shifts from the probate attorney, to the assigned personal representative of the estate. Obviously, the purpose of the probate goes beyond preparing and filing pleadings. It’s true intent, is to take possession (read: control) of the decedent’s assets, and then administer their distribution according to the specific terms of the will. Naturally, this involves taking care of outstanding debts/creditors that the decedent is responsible for first, and then eventually, distributing the remainder of the estate to the various heirs as described within the probate documentation itself.
This process of putting the estate’s affairs in order can be difficult. As any probate attorney will tell you, it is often difficult to figure out where the various assets held by the decedent are located. For example, it is possible that the decedent has investment accounts, annuities, or even life insurance policies that only the decedent truly knew about. Now, unless the decedent has little to no connection with his or her family such that they did not participate in his or her estate planning, this is an uncommon situation. That having been said, it does occur, and a potential probate client would do well in making sure that the probate law firm that is retained, has the tools and resources to help truly locate all the assets that belonged to the decedent in life.
The third and final stage occurs once all the distributions have occurred, and there are no more creditor concerns to deal with. In short, the Personal Representative has done his or her job, and the matter is essentially ready to close. In the third stage, therefore, the attorney will prepare a pleading to be filed with the court which states that the probate has been successfully completed. This pleadings is called a Declaration of Completion of Probate. This declaration serves not only to report to the probate court that the process is complete, but also to have the Personal Representative discharged from his or her obligations.
IS A PROBATE REQUIRED IN WASHINGTON?
A common question that probate attorneys in Seattle field are whether or not a probate is mandatory. The short answer is that, technically, “no.” This is especially true if the decedent has a very small estate, has prepared carefully in life, or has little-to-no assets subject to probate. Unfortunately, that situation is the exception, not the rule. As is the case with many things in life, while a probate may not be mandatory, avoiding one can be extremely foolish (especially if you’re the designated executor–Personal Representative in Washington–of the estate). If you’re unsure whether a probate is appropriate for your situation, contact a Seattle probate law attorney or law firm and have them conduct a review of your situation.
THE ROLES OF A PROBATE ATTORNEY AND PERSONAL REPRESENTATIVE
To best understand what a probate law attorney does, one must know what the responsibilities are for the personal representative of an estate. While it may appear simple on the surface, administering a probate can be sneakily difficult. The roles of both the probate attorney and personal representative of the estate are very similar. For instance, a personal representative is also a recognized “officer” of the court as he goes about performing his obligations on behalf of the decedent’s estate. An attorney, on the other hand, is also an officer of the court, and represents petitioners as part of his professional activities. A probate attorney assists the personal representative in executing the directives contained within the decedent’s will.
The personal representative is obliged to act in good faith regarding the estate. A court once described it effectively in this manner:
“Under RCW 11.48.030, an executor is chargeable in this accounts for the whole estate of a deceased. The executor is an officer of the court and in a fiduciary relationship to those beneficially interested in the estate. He is obligated to exercise the utmost good faith and utilize the skill, judgment and diligence that an ordinarily cautious and prudent person would employ in the *528 management of his own affairs. Hesthagen v. Harby, 78 Wn.2d 934, 942, 481 P.2d 438 (1971); In re Estate of Peterson, 12 Wn.2d 686, 733, 123 P.2d 733 (1942). He must perform his duties not only for the benefit of the legatees but must also protect the estate from invalid and doubtful claims, In re Estate of Shea’s Estate, 69 Wash.2d 899, 421 P.2d 356 (1966), while protecting the rights of valid creditors. Kerns v. Pickett, 49 Wn.2d 770, 306 P.2d 1112 (1957). It is his duty to settle an estate as quickly as possible but without sacrifice to the estate, National Bank of Commerce v. Peterson, 179 Wash. 638, 644, 38 P.2d 361 (1934), and he is liable for any breach of his responsibility which causes loss to another. Hesthagen v. Harby, supra. His trust must be fulfilled with conscientious fidelity whether his charge is large or small.” Wilson’s Estate v. Livingston, 8 Wn. App. 519, 527-528, 507 P.2d 902, 909 (1973).”
To the uninitiated, the above verbiage can be difficult to follow. To summarize what the common understanding is for the responsibilities of a personal representative, one could say simply that he or she is to treat the decedent’s assets as though they were his own–and that he is to act as a cautious, prudent, and effective manner in handling its distribution.
As attorneys, we are often asked specifically what our role is in the probate process. Again, probably aren’t technically mandated in Washington state, meaning that if a personal representative simply wanted to probate a will on his or her own, that is allowed. However, given the nature of the probate in question (especially if it is sizable, or complicated), a personal representative would be extremely wise to seek legal counsel from a probate attorney. The reason for this is because of the potential liability that the personal representative takes upon himself as he serves in that capacity. As stated earlier, a personal representative is deemed to have a fiduciary duty towards the estate AND the heirs. An attorney who is representing the estate ALSO has those same fiduciary obligations to not only the personal representative, but also to the heirs of the estate. Thus, by having legal representation, the personal representative has created a sort of bulwark against liability.
WHO MAY SERVE AS THE PERSONAL REPRESENTATIVE (EXECUTOR)?
While this may seem obvious, just because a will designates someone as a personal representative does not mean that he or she may serve in that capacity. For instance, a person who dies (pre-deceases) the decedent, then that individual can hardly serve as a personal representative. If asked, a probate law attorney should describe to a prospective client the two general disqualification calories: (a) “inherent” disqualification and (b) “innocent” disqualification.
Who cannot serve as a Personal Representative?
Inherent Disqualification: Individuals who cannot legally serve as a personal representative. RCW 11.36.010 outlines a list of individuals who, even if they were willing, are not eligible to serve as an estate’s Personal Representative:
- Corporations. A company cannot serve as a personal representative of an estate. There are some exceptions in the law for companies which are designed for such responsibilities. Trust companies, national banks, and professional service corporations (i.e. law firms) can serve as personal representatives.
- Minors. An individual who has not reached the age of majority (over 18 years old) cannot serve as the personal representative of an estate.
- Persons lacking legal capacity (unsound mind). This situation can be more-common than individuals realize. If one thinks about it, it makes sense–especially in the case of reciprocal wills between a married couple. If a married couple creates an estate plan and names each other as the personal representatives of their respective states, then the problem is readily apparent if they live on to exceedingly old age. In that case, it is quite possible that one spouse passes away due to advanced age, while the other spouse, also exceedingly elderly, is suffering from advanced dementia.
- Felons. In short, if someone has been convicted of a felony, he or she cannot serve as a personal representative of an estate. It should be noted that this requirement persists throughout the probate process. That means that IF an individual is convicted of a felony DURING his or her service as a personal representative, he or she is disqualified from continuing in that role.
- Misdemeanants of crimes regarding “moral turpitude.” While felonies may be obvious, committing a misdemeanor of a certain character can also disqualify someone from being a personal representative. The misdemeanor must be one of “moral turpitude” for this to occur. What is “moral turpitude,” one might ask? In this context, probate law attorneys understand this to mean a crime related to a breach of an affirmative, fiduciary obligation and also, one that is connected to a crime of dishonesty. The idea is, that while the crime committed is not a serious as a felony, the nature of it demonstrates that the individual should not be entrusted with the access and control over an individual’s estate.
- Nonresidents of the state, who do not have a qualified resident agent, either:
-A resident of the local country, or
-The attorney of record for the estate.
While the grounds above may seem exhaustive, they are not. According to RCW 11.28.160, A superior court judge has the power and authority to remove and replace ANY personal representative “for any cause deemed sufficient.” Here are a few examples:
In 1928, a personal representative was disqualified when it was revealed that he had fraudulently removed and hid a decedents will from a safety deposit box. The intent of this individual was to basically suppress its contents. Even though a crime had not been committed in the conventional sense, the court deemed this sufficient to remove his right to serve as the personal representative of the estate. Estate of Robinson, 149 Wash. 307 (1928).
Another example from around the same time as the State of Robinson case had to do with a family member who was disqualified from serving as the personal representative due to his problems with creditors. It turned out that this decedent had an exceedingly long history of hiding property in order to avoid creditors. Estate of Stotts, 133 Wash. 100 (1925).
Not all disqualifications, however, are based on negative context. Some individuals are subject to an “innocent” disqualification. Those are as follows:
-A personal representative can be removed due to becoming seriously ill or dying.
-A personal representative can also resign.
-In the event that a probate is intestate (meaning that the decedent did not leave a will in life), but then later the will is discovered, that Administrator may be removed.
Removal of a Personal Representative due to Conduct during his or her handling of the Estate
The probate law attorney will often be asked whether or not a personal representative can (or even should) be removed. Clearly, there are circumstances where the personal representative may have been appropriately appointed to oversee the administration of an estate, but later behaves in a way which would qualify him for removal. The most obvious basis for a removal is when a personal representative fails to execute his trust faithfully, meaning that he has breached his fiduciary duty to the estate. RCW 11.28.250 provides somewhat of a punch list of reasons why a personal representative may be removed:
- Waste, embezzlement, or mismanagement of the estate, or any situation suggesting that any of that is about to occur;
- Fraud upon the estate;
- Permanent removal from Washington;
- Neglect of the estate; or for
- Any other just cause.
Above all, the contact by the personal representative must be more than simply annoying, slow (though not too slow), or even clumsy. What a probate law attorney would have to show, is that the personal representative had actually damaged (or was about to damage) the interested parties to the estate. In other words, it is common in intrafamilial situations for individuals to not trust or even dislike a designated personal representative. However, that is not sufficient to justify the formal removal of that individual from the personal representative position. One must show that the individual actually did something to harm the estate, and by extension, the heirs.
In the above list from RCW 11.28.250, one might’ve noticed the last basis reserved by law: “for any other just cause.” And in looking at examples of this from past cases, it is clear that courts will remove the personal representative when they see signs of dishonesty or obfuscation in dealing with the estate assets themselves. For instance, if one were to omit property from a formal inventory and appraisement and refuse to make the appropriate distributions according to the terms of the will, the court will consider removing that individual as personal representative. Another example can be less ominous, such as a designated personal representative who simply leaves the state and takes new care to continue on administering the probate.
Clearly, the appointment of a personal representative is an important first step in the probate process. This individual, commonly working with a probate law attorney, has significant influence and authority over the decedent’s assets. This is a sensitive situation, for obvious reasons. Because he is entrusted to act on behalf of a deceased individual, ostensibly for the benefit of third-party heirs (often the decedent’s children and family members), the court has a clear expectation that he will behave in good faith, and in an effective and confident matter.
FAQs Regarding Washington Probate and Estate Planning
Probate in Washington can be confusing and the laws can be difficult to navigate. For this reason, it is only natural for you to have numerous questions regarding the probate process and how to prepare for it. The following are some of the common questions our Tacoma probate lawyers hear:
- When is the right time to call an estate planning attorney? Now is the right time to talk to our law firm. If you have any assets or property, you and your family can benefit from you drafting an estate plan and this is especially important if you have a spouse or children. It is a myth that you need to be older or particularly wealthy to call an estate planning attorney.
- Who is the executor of an estate? The executor of your estate is an important designation that you make in your will. This person will submit your will to the court, notify beneficiaries, settle your debts and taxes, and distribute your property in accordance with your will, among other tasks.
- Are there ways to avoid probate? A skilled estate planning lawyer will know ways to help you avoid putting most of your property through probate. Forming trusts, titling real property in a certain way, and having payable-on-death accounts are only some examples of methods of avoiding probate.
What to Do to Make Probate Easier for Your Loved Ones
The ease of probate is largely dictated by the steps a person took prior to passing away. Some of the many things you can do to simplify the probate process for your loved ones include:
- Think about your estate plan as a comprehensive package. While essential, a last will and testament is generally inadequate to address all of your estate planning needs and you will need to draft and sign other important documents and instructions, as well.
- Do not wait to design your estate plan. Accidents, injuries, and illnesses can happen at any time to people of all ages. If you are suddenly incapacitated, you want to ensure that your wishes are clear and that you and your family are properly cared for.
- Carefully consider who you choose to serve as executor of your estate during probate. This role can require time and energy and you want to ensure that the designated individual not only is willing to serve but has the availability to do so.
- Revisit an existing estate plan regularly. A will that you drafted after getting married will likely need to be updated after you have children or after your children have grown up. Your changing finances may also require more sophisticated estate planning tools as you get older.
At the Dickson Frohlich, our probate attorneys have helped many clients plan for the future to ease the burden on their loved ones and to ensure their hard-earned property is distributed according to their wishes. If you would like to discuss our probate and estate planning services, call our office today.
How Tacoma Probate Law Attorneys Can Help throughout the Probate Process
Our experienced probate lawyers can assist you and your family in many different ways, including the following:
- Evaluate your financial and familial situation to identify and draft any necessary estate planning documents.
- Regularly review your estate plan and advise you when you need to make changes or additions to your plan due to changing circumstances.
- Assist in the probate process to ensure all requirements are met and procedures are followed, which will limit delays or complications.
- Advise executors throughout the administration of an estate in probate.
- Represent the rights and interests of beneficiaries of a will or trust who wish to contest a will or challenge the actions of an executor or trustee.
To learn more about our estate planning and probate services, please contact our Tacoma office of the Dickson Frohlich as soon as possible. We can help you protect your property and your family members, so call us today at 253-572-1000 or contact us online for your free consultation.