The Process of Probate

A Step-by-Step Guide to the Probate Process

By: Conor McCarthy,

Probate is the legal process through which property and other assets pass from you to your dependents after you die (thanks Google). When done properly, the beneficiaries of the estate can rest easy knowing that the decedent’s last wishes were honored, state law was followed, and that the potential for future claims against the estate and executor have been curtailed.

For a decedent with a clear and concise estate plan, the administration of the estate can often be seamlessly directed with few decisions subject to discretion or debate. However, even the most sophisticated among us have left gaps in our estate plan resulting in more challenges in estate administration. This is completely normal, not uncommon, but exactly why probate is so important.

At Ledger Square Law, P.S., we regularly help our clients work through both simple and complex estate administration. Below is summary of the typical steps we’ll take together:

The Six Steps in Probate

  • Step One: We obtain all the relevant information from you regarding the decedent and his or her estate planning documents and assets.
  • Step Two: We file a petition with the court and the court appoints the appropriate individual as the Personal Representative or Administrator of the Estate. In some cases, the court supervises this person’s administration activities, and in other cases this person is entitled to administer the estate without probate court supervision. 
  • Step Three: We provide notice of the estate administration to heirs, beneficiaries, and creditors. The legal process also requires us to publish notice in a newspaper.
  • Step Four: We wait 4 months for any claims against the estate. During that time, we work with you to create an inventory of the assets of the estate and take steps to ensure these assets are preserved and maintained during the probate process.
  • Step Five: After any claims against the estate are resolved, you distribute all of the assets of the estate in accordance with the Will or the laws intestate, (that is, if Decedent had no Will). These laws simply set forth who gets the Decedent’s assets if he or she passes without a Will. Of note, the entire probate process is basically the same in instances where no Will exists.
  • Step Six: We close the Estate. Sometimes, this merely requires the filing of documentation with the Court, and sometimes we need to ask the Court’s approval to close the estate.

Best of all, you will not have to learn these laws or procedures. That’s our job. We’ll do all the paperwork, prepare all the legal documents, and guide you through the probate process step by step. During this time, we want you to focus on doing the important work of grieving and caring for the people around you who have also lost a loved one.

Of course, there can be many nuances to this process based on the unique circumstances of each case, but the framework for estate administration remains by and large the same.  In addition to what is laid out above, it is important to understand some of the basic concepts relevant to probate:

  • Non-probate Assets. You may have heard there are some assets of the estate that are not subject to probate and which pass outside of the probate process altogether. These assets are referred to as non-probate assets, and typically include the decedent’s investment accounts, life insurance, and assets held in trust. These non-probate assets are often gifted via transfer on death designations and are transferred outside of probate directly to the beneficiaries named per the applicable designation. While these assets pass directly to the named beneficiaries outside of the probate process, they will often be included in calculating the gross estate for estate tax purposes and could be subject to claims against the estate.
  • Estate Tax. The dreaded estate tax is top-of-mind for most when preparing their estate planning documents, and certainly becomes even more relevant when administering a decedent’s estate. Any property transferred at death is subject to both Federal Estate Tax and Washington State Estate Tax. However, these taxes only apply to estates over a certain size of the respective 2019 exemption thresholds as noted below:

                   Federal Estate Tax threshold is $11.4 Million, and the

               Washington State Estate Tax threshold is nearly $2.2 Million

While we do not provide tax advice, we will help you determine whether there is a taxable estate and outline the next steps.

  • Community Property Agreements and Probate. When our grandparents or parents lose their spouses, the probate process can be avoided if the parties have a Community Property Agreement (“CPA”) in place.  Pursuant to Washington State Law, the disposition of the decedent’s interest in community property occurs by operation of law if the parties have a CPA. As a result, typically no probate action is required. Nevertheless, the surviving spouse must still take certain steps to ensure proper transfer of the decedent’s assets, and depending on the language of the CPA, separate action may be required for disposition of separate property. If this is the situation you find yourself in, we will prepare the necessary documentation and make sure all appropriate steps are taken.

While there are many nuances to the probate process, please know you can rely on our experience and common sense to help facilitate and complete the process with the decedent(s) and your best interests in mind. 

Written by Conor McCarthy at Ledger Square Law. Conor McCarthy is an experienced Real Estate and Estate Planning attorney who has spent nearly 15 years helping his clients navigate and resolve complex transactions and disputes. Click here to learn more about Conor’s specialized estate planning services.

Wills vs. Living Trusts: What you Need to Know

By: Conor McCarthy,

We put your needs first.

Whether you’re just starting to think about estate planning, or you need to make modifications or learn more about a family member’s estate plan, the estate planning attorney’s at Ledger Square Law, P.S. are here to help. During the estate planning process (read more here), we execute documents that outline the administration or distribution of your estate upon your death. Most estate plans fall into the following two categories: a Last Will and Testament or Living Trust.

Last Will and Testament
Your Last Will and Testament (“Will”) directs the disposition of your assets upon your death. In your Will, you may make specific bequests of certain property you would like to give to specific people. In addition, for personal property, your Will also incorporates a separate list that you can create and modify at any time (on your own), in order to direct belongings to loved ones. In addition to your specific bequests, your Will also makes provisions for your ‘residuary’ estate, that is the remainder of your estate.

Will everything be given to your children equally?
Do you want to make any charitable gifts?

Your Will answers these questions as you deem fit. Your Will also identifies the Personal Representative of your estate, as well as your immediate family members, and whether or not any provision is made for your family. For married couples, a Community Property Agreement is typically drafted contemporaneously with the Will. A Community Property Agreement allows for the disposition of the decedent’s interest in the community estate to his or her surviving spouse by operation of law, and without the need for probate.

Many Wills often include trusts called testamentary trusts. A testamentary trust will typically be included within your Will for the benefit of a spouse, minor children, pets, and/or utilized as a tool to address or mitigate future estate tax burdens. A testamentary trust is funded at the time of your death with the assets that are directed to that trust as set forth in your Will.

For example, you may have a Will that establishes that your entire residual estate (after making any specific bequests) will go into a trust for your minor children, to be utilized for their benefit in accordance with the instructions you put into the trust, until the final distribution thereof.

In addition, while your Will does not generally address the disposition of non-probate assets, such as your investments, life insurance, and retirement accounts, we’ll review these accounts with you and make sure you have the appropriate transfer on death beneficiary designations in place as part of your retirement plans.

The basic Will estate plan for a married couple will include the following documents: a Last Will and Testament (one Will for each spouse), a Community Property Agreement, a General Durable Power of Attorney, a Health Care Power of Attorney, and a Health Care Directive (optional).

 A Living Trust: During your Lifetime
A Living Trust accomplishes the same objectives of the typical Will, but in a completely different way. With a Living Trust, all of your assets are immediately put into trust, and you continue to manage all of your assets as the creator (or settlor) of the trust, despite transferring all of your property into the trust. During your lifetime, you can modify and/or revoke the trust in your discretion (hence, making the trust ‘revocable’).

A Living Trust: At the Time of your Death
At the time of your death, the trust then becomes irrevocable and cannot typically be modified. Subsequently, the individual you have identified as the successor trustee in your Living Trust becomes essentially the executor of the trust, and then distributes the assets of the estate directly to the beneficiaries you have identified therein. Living Trusts are typically favored by individuals who desire to avoid the probate process involved with administering a Will.

A Living Trust: Making Estate Administration Efficient
Living Trusts generally increase the chances that your estate plan will remain private, and sometimes allow for a more stream-lined transfer of assets upon death. Though Living Trusts are prepared to avoid the necessity of a Will, a Pour – Over Will is typically created (along with the Living Trust) to ensure that any of the decedent’s assets that have not been properly transferred to the Trust, end up being directed to the Living Trust upon the decedent’s death. Though often characterized as a tool to increase the efficiency of estate administration, the Living Trust requires more front-end administration in order to make sure that all of your property is properly held by the trust. Moreover, Living Trusts (like all trusts) are subject to laws governing administration (which come along with their own sets of rules and requirements).

(Note: Even where there is no probate, a Will has to be filed with the Court).

The basic Living Trust estate plan for a married couple will include the following documents: a Living Trust (jointly for both spouses), a Pour – Over Will(s) for each spouse, a General Durable Power of Attorney, a Health Care Power of Attorney, and a Health Care Directive (optional).

During our initial consult, our estate planning attorneys will help you determine whether you need a Last Will and Testament or a Living Trust. Whichever document best suits your needs for how to handle your estate after you pass, the attorneys at Ledger Square Law, P.S. are here to help you.

Written by Conor McCarthy at Ledger Square Law, P.S.. Conor McCarthy is an experienced Real Estate and Estate Planning attorney who has spent nearly 15 years helping his clients navigate and resolve complex transactions and disputes. Click here to learn more about Conor’s specialized estate planning services.

Prepare + Plan = Peace of Mind

The Three Steps to Estate Planning

By: Conor McCarthy,

One recent survey concluded that more than half of Americans do not have essential estate planning documents in place. Estate planning, or planning for the administration and distribution of your estate upon your death, is simple, affordable, but overwhelmingly ignored by most families.

When working with Conor McCarthy, one of our attorneys who specializes in estate planning, we emphasize the importance of having an estate plan to ensure any earned assets are bequeathed and administered consistent with your wishes and are not left to the courts or strangers to decide.

As you begin this process, ask yourself

Who do you want to be your executor?

Who do you want to receive your property and investments?

Who do you want to have custody of your minor children?

Establishing a plan based on these questions puts your family in the best possible position to process your loss. Having a plan ensures your family will avoid the struggles and difficulties often experienced by those whose loved ones failed to prepare, at the very least, a basic estate plan. Trust us, as a law firm experienced in litigating estate disputes throughout the Puget Sound, Tacoma, and Gig Harbor, we are well versed in the trying scenarios that unravel as a result of the lack of an estate plan. Putting the basic estate plan into place will go a long way to ensure your loved ones can focus on celebrating your life, and not fighting over your possessions.

Our Process is Simple, Efficient, and Designed to Meet your Goals

Our estate planning process is designed to achieve your unique objectives and doesn’t require clients to have every detail determined before the first meeting. We provide a forum for dialogue, which allows us to gather information to inform what will eventually become your estate plan.

Below are Ledger Square Law’s Three Steps to Estate Planning:

Step 1. Inventory Your Assets and Objectives. Our estate planning process begins with an inventory of your assets, an understanding of your immediate family, and your wishes with respect to the disposition and administration of your estate.

Step 2. Pick the Vehicle(s) Best for You. For estates which are, or which will likely become, subject to the Federal or State Estate taxes, you may want to consider an estate plan that contemplates annual giving and certain trust vehicles in order to lessen or eliminate the potential for future estate tax burdens. (In 2019, the Federal Estate Tax threshold is $11.4 Million, and the Washington State Estate Tax threshold is nearly $2.2 Million). While we do not provide tax advice, we will help you determine whether there is a taxable estate and make sure we work hand-in-hand with you and your accountant as it relates to tax planning for your estate, and ultimately make sure that you have the most advantageous Will or Trust vehicles in place.

For example, for those estates with minor children, in addition to indicating a preference for the custody of your children, you may consider a testamentary trust, which delineates how your funds will be managed for the benefit of your children when you pass.

Or, for estates with real estate holdings, including out of state real estate, you may consider deed modifications or trust instruments that allow the real estate to transfer immediately upon your death, and outside of probate, while considering and addressing the potential impacts of capital gains taxes.

Step 3. Memorialize Your Estate Planning Documents. Once we have a good idea as to your assets and wishes, we then prepare the initial draft estate plan for review and discussion. From there, we work together to ensure the overall plan meets your long-term goals. In addition to creating the Estate Planning documents, we will discuss certain non-probate assets, such as your investments and life insurance, and make sure you have appropriately identified the beneficiaries consistent with your last wishes. Upon completion, we execute the final documents and they are given back to you for safekeeping.

We make the estate planning process simple and efficient, and most importantly we’ll make sure that you are positioned to make the best possible decisions.

Written by Conor McCarthy at Ledger Square Law, P.S. Conor McCarthy is an experienced Real Estate and Estate Planning attorney who has spent nearly 15 years helping his clients navigate and resolve complex transactions and disputes. Click here to learn more about Conor’s specialized estate planning services.