If I am the only person on my mothers will would I still have to go through probate when she passes away?

Asked over 1 year ago - Spokane, WA

My mother has left her home and all of her assets to me on her will. She has also made me the executor and only beneficiary. I have power of attorney and her home is paid off. She does have two other daughters but each of them received large sums of money when my mom's sister passed so she attached a letter to her will that says she feels they have already been provided for.That same letter also lists off all of the family members that she sent 5,000$ to, so she is saying that everyone has already been taken care of. I am currently living in the home with her and I am her full time care giver because she is in a wheel chair, I do not receive a paycheck. I was recently told that the only reason I would have to go through probate is if someone contested the will. Is that true? Thank you.

Attorney answers (4)

  1. Jeffrey Alan Herbster

    Contributor Level 4

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    Answered . When a person passes away leaving real property it is generally necessary to go through the probate process. There are some exceptions for surviving spouses, but it is likely her estate will be required to go through the probate process. Probate also provides a means for other issues to be addressed such as any debts she has and notice to creditors. You also raise many issues which may increase the complexity, such as whether she is receiving Medicaid or other assistance, and the additional letters attached to her will, which will need to be addressed in the probate process.

  2. Jennifer L King

    Contributor Level 8

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    Answered . It is correct that if assets are owned solely in your mother's name they are usually subject to probate. Exceptions are assets like retirement accounts and insurance policies that have beneficiary designations other than the "estate;" bank accounts with "pay on death" (POD) designations, and investment accounts with "transfer on death" (TOD) designations. It could also be the case that assets owned in joint tenancy with right of survivorship with others, in which case those assets would not be suject to your mother's will.

    Washington state probate is a very streamlined process, especially compared to some states. Once the will is admitted to court, the named executor can receive powers (called nonintervention powers) to take care of what needs to happen without going back to court to ask permission. There are certainly ways to avoid probate (like a revocable trust). However, probate is nothing of which to be frightened, and summarily concluding you need to avoid it at all costs, at least in my opinion, isn't the right mindset.

    You will, however, have to give notice to your sisters that you have commenced the probate. They would have a certain period of time to contest the will.

    One other note: be very careful in simply transferring your mother's assets to yourself or anyone else as there can be significant income tax and estate tax consequences. Further, if you do this in your capacity as your mother's attorney-in-fact under the power of attorney, you must be extra careful that you have the authority to do so under the document. If you are even considering any of these acts, you absolutely should contact an experienced estate planning/probate attorney for advise.

  3. Justin Eric Elder

    Pro

    Contributor Level 16

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    Answered . I agree with what my colleagues wrote and would just like to reiterate that probate in Washington is very streamlined and not something to be avoided at all costs like it is in other states.

    Please have your mother consult with a good elder law attorney to make sure her estate plan is squared away.

    This posting is for informational purposes only. It is not legal advice, nor does it establish an attorney-client... more
  4. Eric Jerome Gold

    Pro

    Contributor Level 19

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    Answered . Your best bet is to consult with a local estate planning attorney. Generally speaking, unless proper estate planning takes place while your mother is alive and while she has the requisite mental capacity, the estate needs to go through probate. There are methods to avoid probate, such as changing the form of title to real property, using beneficiary designations and titling for specific types of accounts, etc. These options should be thoroughly explored with a local estate planning attorney to be sure that your mother can make informed decisions regarding her testamentary goals.

    ** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client... more

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