I took a brief survey on my firm’s Facebook page, and the most responses came in asking for an explanation of what exactly probate is. This post will be just a brief outline of the history of probate, what it accomplishes, and then, finally, whether or not it should be avoided (in Washington, it is not something to be afraid of). This post will NOT cover probate in other states because that is beyond my knowledge and expertise. However, there are some common aspects of probate that are applicable everywhere.
Just so you know, this post is mostly for information about WHAT probate is, rather than HOW it is done. I’ll save that for another day.
History of Probate
Probate is the judicial process by which the estate of a deceased person is administered by that person’s will. A simpler way to put it is the process of transferring the property owned by a person who has passed away. In Washington, at least, the process for the transfer of ownership is pretty much the same whether someone had a will nor not, but it is called “intestate estate administration” if there is no will.
The word “probate” comes from the Latin “probare” — to prove. The earliest recorded instance of the word being used in English was with regard to proving a will. It seems that probate was the prerogative of ecclesiastical (church) courts for much of English history. When the British legal system of Common Law was imported to the United States, the concept of probating, or proving, a will was also imported. It was very important that a will be proved to be genuine and valid. If it was not, it was just worthless paper. Only after a will was proved could it be followed.
The system evolved over time to cover more things, to allow more people to own and pass property at death, and to allow more people to inherit, but the idea is essentially unchanged: probate is still about proving a will.
What Probate Does
Probate’s greatest function is the transfer of real property, i.e. real estate. Other forms of property (cars, boats, planes, chairs, animals, appliances) can be put in a will to be probated, but real property often MUST be probated. Where this affects most normal people in the United States is that houses must be probated.
What Do I Need to Know About Probate in Washington?
In my experience, these are the things that most of my clients need to know about probate in Washington:
- a will has no effect if not probated
- probate in Washington is very cheap — often cheaper than trying to avoid probate
- probate can often be avoided between married persons, but not after the second spouse passes away
Should I Avoid Probate?
It seems that there are a lot of people these days who are VERY concerned with avoiding probate. Without knowing someone’s unique circumstances, it is impossible to say whether or not you should avoid probate. However, what I can say is that most people in Washington do not need to be scared of probate. Washington has frequently been cited as being the most consumer-friendly state for probate. The process is fairly straightforward, attorneys in Washington do not receive a percentage of the estates (just normal legal fees), and probate does not take very long.
This, of course, is not the case everywhere. California, for example, is infamous for charging, by statute, a percentage of the estate for probate. This can result in legal fees of well over $10,000 for even a modest estate. Rest assured, good citizens of Washington, that this is not the case here. Attorneys in Washington charge either a flat fee or by the hour, so a probate here in Seattle is quite reasonable.