Is Probate Always Necessary? Maybe Not

Probate is the court-administered distribution of assets that can occur after someone has passed away. Probate can happen even when someone had a will, and the process requires the deceased person’s executor or heirs to open a case with a local superior court, by paying a filing fee and filing specific legal paperwork. You may also require an attorney’s assistance so your probate paperwork is accepted by the court and you are able to complete the probate successfully. But, do you really need to go through probate at all?

There are a few ways to help avoid probate in Washington State. During your life, you can choose to do some advanced planning to intentionally avoid probate, including setting up a trust, filing a transfer on death deed for real estate, or naming a beneficiary on financial accounts.

Even if someone has not done any estate planning, there are certain circumstances where an estate might not need to go through probate at all.  A Small Estate Affidavit can be used instead of probate to transfer certain assets, but only if the person who passed away didn’t own any real estate or have any unpaid debt, and if their total estate is less than $100,000 in value.

Another way to avoid probate is a Lack of Probate Affidavit. This document can be used to transfer real estate out of the name of a deceased person.  But, this Affidavit this does not transfer any mortgages on the property, so you might still need to refinance the mortgage on the property, if there is one.  Only rightful legal heirs, as defined by Washington State Law, can use a Lack of Probate Affidavit to transfer a deceased person’s property i.e. a spouse, or children. The Affidavit cannot be used to transfer property if a probate has already been opened for the Estate.

It’s also important to note that neither the Lack of Probate Affidavit nor the Small Estate Affidavit protects a deceased person’s heirs from the debts that might be owed by that person who has passed away.  The process of settling a loved one’s final affairs can be complicated, but it doesn’t have to be.  Please contact Limitless Law PLLC at 360-685-0145 if you need assistance with any estate or probate legal matters in Washington State.