Probate is a court proceeding in which issues involving the distribution of property and payment of debts of a deceased person are resolved.
1. Routine Probate Administration
In a probate we file a petition with the court on behalf of someone who qualifies as the personal representative (PR) of the deceased person (called “the decedent) and ask the court to formally appoint that person as PR. Upon proof that the person qualifies the court issues “letters testamentary” (in the case of a will) or “letter of administration” (in cases without a will). The PR then is entitled to deal with banks, stock transfer agents, realtors, insurance companies, the IRS, the state of Washington and all of the decedent’s creditors in resolving property and debt questions. Appropriate debts are paid, assets are accumulated and inventoried. Sometimes property needs to be sold, such as the family home. The PR is in charge of listing and preparing the home for sale. Finally, after all debts are paid and property sold as necessary, the net assets are distributed to the legal beneficiaries of the decedent in their respective shares. With proof that that has been done, the probate estate is closed.
We do all the court work in these cases and guide our clients through the process so that problems are avoided and the case can be wound up with a minimum of cost and delay.
2. Disputed Probates
Sometimes decedent’s estates are disputed. There can be differences among heirs or relatives of the decedent about what share each is entitled to. There can be questions about whether the personal representative (the PR) has properly accounted for or misappropriated assets of the estate. Sometimes the PR’s decisions and expenses are challenged. These cases involve procedures under the Trust & Estates Dispute Resolution Act (TEDRA) and can become nasty, almost like a divorce case with siblings fighting over the estate, for example sister accusing a brother of stealing from the estate or hiding and lying about the assets. Some are an accounting nightmare. As difficult and costly as these cases are, we have the expertise and stamina to vigorously represent and stick with our responsible clients through these travails or guide them to a reasonable compromise settlement.
Due to the complications and costs inherent in such cases, the result is too often to simply deplete the estate in attorney’s fees and costs. We advise to proceed with great caution and to consider the best available settlement options as early as possible.
3. Will Contests
Litigated will contest cases are of the most difficult, risky and costly there are. In order to upset a will there must be strong evidence that the testator (the person signing the will) lacked the mental capacity to execute a will or was induced to make a bequest by “undue influence” exerted by a beneficiary, often a caretaker. Proof of such often must be based on speculative and circumstantial evidence and the result may depend on very vague elements and subjective legal standards. The required level of proof by testimony of witnesses with direct knowledge may be difficult — but not impossible — to obtain and present. The cost warnings of the previous section regarding disputed probates apply here as well, with the special warning that the court can require an unsuccessful will contestant to pay the attorney fees of the party defending the will.