What does it mean to die intestate — and what happens to your estate?

If a person dies without a Will, that person is said to be intestate. Washington's Intestacy Statute (RCW 11.04.015) creates the order of distribution for an intestate estate — essentially distributing to your 'next of kin.' The questions proceed as follows, and as soon as you get a yes answer, all people at that level of relation share equally: • Are you married? • Do you have children? • Are your parents alive? • Do you have siblings? • Do you have cousins? Nieces and nephews? The word intestate comes from the Latin intestatus. Historically in France, dying intestate was treated as a crime — an omission to give something to the church — and was punished by denial of burial in consecrated ground. The modern consequence is less dramatic but still significant: the State decides who gets your property.

What is probate and when is it required in Washington State?

Probate is the court-supervised process for transferring assets out of a deceased person's name into a beneficiary's name where no other process exists. Probate is generally required when: • The estate has real property (regardless of value) • The total value of assets exceeds $100,000 • There is no other mechanism to transfer the assets (no trust, no joint tenancy, no beneficiary designation) Probate can generally be avoided through: • Revocable Living Trust — the primary tool for probate avoidance • Joint Tenancy with Right of Survivorship — property passes automatically to the surviving owner • Beneficiary Designations — IRAs, 401(k)s, life insurance, and some bank accounts pass directly to named beneficiaries • Transfer on Death Deed — real property passes directly to named beneficiaries without probate • Affidavit of Small Estates — for estates under $100,000 with no real property

What is the Affidavit of Small Estates — and when can it be used?

If there is no real property involved, probate can generally be avoided through the use of an Affidavit of Small Estates, so long as the total value of assets is under $100,000. The Northwest Justice Project has prepared a Do-It-Yourself Affidavit Procedure for Small Estates for estates under $100,000. Requirements: • No real property in the estate • Total value of assets under $100,000 • At least 40 days have passed since the date of death • No probate proceeding has been commenced The affidavit is presented to the holder of the asset (bank, brokerage, etc.) along with a certified copy of the death certificate. The holder transfers the asset to the person named in the affidavit without court involvement.

What is the role of the Personal Representative in a probate proceeding?

The Personal Representative (PR) — formerly called the Executor (male) or Executrix (female) — is the person appointed by the court to administer the estate of a deceased person. Key duties of the Personal Representative: 1. File the Probate Petition and obtain Letters of Administration (intestate) or Letters Testamentary (testate) 2. Create the inventory — a complete list of all assets, values, and debts of the estate 3. Notify creditors — publish a Notice to Creditors and mail notice to all known creditors 4. Pay valid debts and taxes 5. Distribute remaining assets to beneficiaries according to the Will or Intestacy Statute 6. File a final accounting with the court The Personal Representative should be a reasonable, level-headed person — such as an accountant — who is honest, detail-oriented, and unlikely to offend or upset beneficiaries. Poor choice of Personal Representative is one of the most common probate pitfalls.

What are Letters Testamentary and Letters of Administration?

In order for the Personal Representative to administer the estate of a deceased person, Letters are typically required. Letters are issued by the Court after being requested in a Probate Petition. • Letters of Administration are issued if there is no Will (intestate). • Letters Testamentary are issued if there is a Will (testate). The powers granted by both are the same. The person who makes a Will is called the Testator. Letters are typically required by: • Banks and financial institutions — to access and transfer accounts • Real estate title companies — to transfer real property • The DMV — to transfer vehicle titles • Employers — to collect final wages and benefits • Insurance companies — to collect life insurance proceeds payable to the estate

What is the Washington Intestacy Statute — and how does it distribute a community property estate?

Washington is a community property state. The Intestacy Statute (RCW 11.04.015) treats community property and separate property differently: Community Property (assets acquired during marriage): • If the deceased spouse has no children, or all children are also children of the surviving spouse: the surviving spouse receives all community property • If the deceased spouse has children from a prior relationship: the surviving spouse receives one-half of the community property; the children from the prior relationship receive the other half Separate Property (assets owned before marriage, or received as gifts or inheritance during marriage): • If there is a surviving spouse and no children: the surviving spouse receives all separate property • If there is a surviving spouse and one child: the surviving spouse and child each receive one-half • If there is a surviving spouse and two or more children: the surviving spouse receives one-third; the children share the remaining two-thirds equally • If there is no surviving spouse: children share equally This distribution may not reflect your wishes — which is why a Revocable Living Trust is so important.

What are the Top 10 Probate Pitfalls?

1. Lack of Focus on the Emotional Impact — the most important thing about probate is the management of the feelings of beneficiaries and communication among them for the rest of their lives. 2. No Will — Without a Will, your Beneficiaries must communicate and agree on who serves as Personal Representative, whether a Bond is required, and whether Non-Intervention Powers are granted. 3. No Witnesses to the Will — If your Will does not contain a Self-Proving Affidavit, witnesses who knew you at the time you signed will need to be located. 4. Poor Choice of Personal Representative — choose a reasonable, level-headed person who is honest, detail-oriented, and unlikely to offend beneficiaries. 5. Personal Representative Not Communicating With Beneficiaries — in the absence of information, beneficiaries are likely to assume the worst. 6. Disagreements Among Beneficiaries — if beneficiaries cannot agree that they have all received what they are entitled to receive, litigation may result. 7. Disagreement Between Beneficiaries and the Personal Representative — if the PR acts over the objections of beneficiaries, that creates a high risk of litigation. 8. Inadequate Inventory — one of the most important duties of the PR is to create a complete list of all assets, values, and debts. 9. Personal Representative Acting Without Beneficiary Consent — if the PR sells a house without informing the beneficiaries, and it can be shown that the sale was for below-market value, the PR could

Christopher S. Mulvaney, Esq. — Attorney-and-Counselor-at-Law — Professionalism with Integrity — WSBA#33595 — Licensed Only in Washington State

[email protected]Bellevue, WA

Intestate Probate Without a Will

Trusts Overview

Washington State Probate

When there is no will, the State decides who gets your property.

RCW 11.04.015 — Washington Intestacy Statute

Probate is the court-recognized process for transferring assets out of a deceased person's name into a beneficiary's name where no other process exists. When a person dies without a will — intestate — Washington's Intestacy Statute determines who receives the estate. A Revocable Living Trust is the primary tool for avoiding probate entirely.

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