Written by attorney Jules R Butler

My Loved One Has Just Passed Away, What Do I Do Now?

For close friends and family, the death of a loved one can involve more than learning to live without that person. People often leave behind a balance of property and debts that require administration. Some pass away with an estate plan governing the final disposition of everything from their assets to their mortal remains. Others do not. The purpose of this guide is to help you begin the process of winding up the affairs of your recently deceased loved one through a combination of directions, definitions, and hyperlinks.

Consider Hiring an Attorney

Disposing of a decedent’s estate involves familiarity with esoteric terms of art and adherence to highly technical rules and procedures which can vary widely from jurisdiction to jurisdiction. The pitfalls are many. Failure to properly observe applicable rules and procedures can tie up the distribution of the estate in needless, expensive, and time-consuming litigation and expose the personal representative to personal liability.

Locate Relevant Documents

Look for a Post-Mortem Instruction Sheet, Last Will and Testament, Community Property Agreement, Insurance Policies, and evidence of property held jointly with rights of survivorship. These types of documents will tell you, among other things, what property passes automatically outside the probate process, a list of estate beneficiaries and order of priority, and other details related to decedent’s final wishes. In some cases probate will be unnecessary or can be completely avoided. This will be covered in greater detail below.

If no such documents are in existence, your loved one died intestate. That is, he or she died without a Will or other testamentary documents outlining his or her final wishes. Intestate estates are beyond the scope of this guide. However, you can refer to Chapter 11.04 of the Revised Code of Washington for more information, including the statutorily prescribed order of distribution.

In any event, you will need to obtain copies of the death certificate from the county in which the decedent died.

I found a Will. Now What?

Washington State does not require a probate proceeding to be filed following death. However, any Will of a Washington resident decedent must in all cases be promptly filed with the Clerk's Office of the Superior Court of the county in which decedent resided at death. Persons in possession of a will must deliver it to either the court or the Personal Representative within thirty days of learning of the decedent’s death. Personal Representatives must deliver the Will to the Clerk's Office of the Superior Court having jurisdiction within forty days of learning of decedent’s death.

Avoiding Probate

First, if the decedent owned no property or held no property in his or her own name, then probate is not necessary because there is no property to be the subject of a probate proceeding. If the decedent did hold property in his or her own name, but the entirety of the estate was either held as a Nonprobate Asset or subject to a Community Property Agreement, then no probate should be necessary.

The term “Nonprobate Asset" refers to those rights and interests that pass on a person's death under a written instrument or arrangement other than the person's will. Such assets include, but are not limited to: a right or interest passing under a joint tenancy with right of survivorship; payable on death or trust bank accounts; certain deeds, conveyances, and trusts; and individual retirement accounts, bonds, notes, or other contracts the payment or performance of which is affected by the death of the person. Such assets are payable to the named beneficiary and pass outside the probate process. The document evidencing the Nonprobate Asset will in most cases contain contact information for the entity responsible for transferring title, issuing checks, and the like. Contact that entity to begin the process. You will need to have a copy of the death certificate to proceed.

A Community Property Agreement is a written and notarized agreement between and signed by a married couple or registered domestic partnership that: declares that either all property or an itemized list of property, currently owned and/or acquired in the future is community property; and/or provides for the disposition of community property upon the death of the first of the spouses or domestic partners to die. For our purposes, the Community Property Agreement must provide for the disposition of the property upon the death of the first spouse or domestic partner to die and must also encompass all of the property held by the first spouse or domestic partner to die. You will need a copy of the death certificate to change title to any property encompassed in the agreement requiring such a change.

Second, if the value of decedent’s entire estate does not exceed $100,000, then personal property in the estate may pass to his or her successors by filing a Small Estate Affidavit and no probate is necessary.

Third, be aware that Washington state law allows the conversion of certain probate assets to Nonprobate assets. This allows the transfer of property directly to the surviving spouse or next of kin upon completion of certain requirements. Such assets include Bank Accounts ($2500 or less), Credit Union Accounts ($1000 or less), unpaid wages ($2500 or less in most cases), Social Security Benefits ($1000 or less), and vehicles. Federal Law also provides for the conversion of IRS tax refunds and US Savings Bonds upon proper submission of the relevant form.

Finally, make sure you call the institutions holding estate assets and inquire how such assets may be transferred. Oftentimes such institutions will have their own procedures and forms in place specifically for this purpose.

When to Probate

If decedent died with a will and owning, in his or her name, either real property or personal property the total value of which is greater than $100,000 as of the date of death, you will in most cases need to file a probate action to remove decedent’s name and replace it with that of the appropriate beneficiaries. To proceed, you can contact the Superior Court Clerk of the County in which the decedent resided at death for more information on opening, administering, and closing a probate proceeding. Make sure to familiarize yourself with the court’s local rules and procedures and pay special attention to detail. Seek legal counsel if you are at all unsure about any aspect of this process.

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