Lexis Nexis LexisNexis Practice Guide: Washington Probate and Estate Administration
LexisNexis Practice Guide: Washington Probate and Estate Administration is a practice-oriented resource that assists attorneys in every step of the probate and estate administration process.
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Matthew Bender
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LexisNexis Practice Guide: Washington Probate and Estate Administration is a practice-oriented resource designed to assist attorneys in guiding their clients through the probate and estate administration process. The author is a leading estates attorney in the state of Washington who has provided a wide variety of practice tips, examples and forms crucial to effective probate and estate administration in Washington. This practice guide includes in-depth analysis of topics such as: determining whether probate is necessary, identifying heirs and beneficiaries, creditors’ claims, and family protection.
The 2022 edition ISBN is 9781663348401.
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Table of contents
About the Author
CHAPTER 1 PRELIMINARY STEPS
PART I: CHAPTER OVERVIEW
§ 1.01 Scope
§ 1.02 Preliminary Issues—Overview
PART II: DETERMINING WHETHER PROBATE IS NECESSARY
§ 1.03 Preliminary Determinations
§ 1.04 Is Probate Necessary or Desirable?
§ 1.05 Filing of the Will
§ 1.06 Comparison of Alternatives to Probate
§ 1.07 When Probate Is Necessary
PART III: ALTERNATIVES TO PROBATE
§ 1.08 Small Estate Affidavit Procedure
§ 1.09 Adjudication of Testacy or Intestacy and Heirship
§ 1.10 Stand Alone Creditor Claim Procedure
§ 1.11 Community Property Agreements
§ 1.12 Transfer of Real Property with a Lack of Probate Affidavit
§ 1.13 Payment of Small Bank Accounts and Unpaid Wages
PART IV: INITIAL CONSIDERATIONS
§ 1.14 Burial Arrangements
§ 1.15 Organ Donation.
§ 1.16 Autopsy
§ 1.17 Death Certificates
§ 1.18 Notification of Death
§ 1.19 Caution Regarding Published Obituaries
PART V FORMS
§ 1.20 Small Estate Affidavit (RCW 11.62)
§ 1.21 Affidavit in Support of Community Property Agreement (Financial Accounts)
§ 1.22 Affidavit in Support of Community Property Agreement (Real Property)
§ 1.23 Affidavit in Support of Community Property Agreement (Securities)
§ 1.24 Lack of Probate Affidavit
§ 1.25 Notice to Successors of Small Estate Affidavit Claim and Written Consent from Successors
CHAPTER 2 OPENING PROBATE
PART I: CHAPTER OVERVIEW
§ 2.01 Scope
§ 2.02 Opening Probate—Overview
PART II: INITIAL STEPS
§ 2.03 Identifying the Personal Representative
§ 2.04 Preparation of Opening Documents
§ 2.05 Obtaining the Original Will
§ 2.06 Lost Will
§ 2.07 Bond
PART III: PRESENTING PETITION TO COURT
§ 2.08 Notice
§ 2.09 Submission of Pleadings to Court
§ 2.10 Notice to Creditors
PART IV: INITIAL STEPS AFTER OPENING PROBATE
§ 2.11 Notice to Heirs, Beneficiaries, DSHS, Department of Revenue and Creditors
§ 2.12 Instructions to Personal Representative
§ 2.13 Office Checklist and Calendar
PART V: FORMS AND CHECKLISTS
§ 2.14 Form Petition for Opening Probate—With Will
§ 2.15 Form Petition for Appointment of Administrator
§ 2.16 Sample Order Admitting Will to Probate and Appointing Personal Representative
§ 2.17 Sample Order Appointing Administrator
§ 2.18 Form of Oath of Personal Representative
§ 2.19 Notice to Creditors
§ 2.20 Sample Affidavit of Witnesses
§ 2.21 Sample Motion to Remove Will from Repository
§ 2.22 Form Notice of Appointment and Pendency of Probate
§ 2.23 Sample Proof of Mailing
§ 2.24 Sample Letter to Department of Revenue and Proof of Mailing
§ 2.25 Sample Letter to DSHS and Proof of Mailing Same
§ 2.26 Letter to Personal Representative
§ 2.27 Checklist for Personal Representative
§ 2.28 Attorney File Checklist
CHAPTER 3 IDENTIFICATION OF HEIRS AND BENEFICIARIES
PART I: CHAPTER OVERVIEW
§ 3.01 Scope
§ 3.02 Heirs and Beneficiaries—Overview
PART II: INTESTACY
§ 3.03 Washington Law of Descent and Distribution—General
§ 3.04 Representation
§ 3.05 Qualification as Spouse
§ 3.06 Definition of Issue
§ 3.07 Adoption
§ 3.08 Kindred of the Half-Blood
§ 3.09 Stepchildren and Others Related by Marriage
§ 3.10 Escheat
PART III: SPECIAL RULES
§ 3.11 Advancements and Satisfaction
§ 3.12 Slayer’s Statute
§ 3.13 Disclaimers
§ 3.14 Simultaneous Death
§ 3.15 Lapse and the Anti-Lapse Statute
§ 3.16 Effect of Divorce
§ 3.17 Omitted Spouse
§ 3.18 Omitted Child Statute
CHAPTER 4 NONPROBATE ASSETS
PART I: CHAPTER OVERVIEW
§ 4.01 Scope
§ 4.02 Nonprobate Assets—Overview
PART II: TYPES OF NONPROBATE ASSETS
§ 4.03 Types of Nonprobate Assets--Generally
§ 4.04 Joint Tenancy with Right of Survivorship
§ 4.05 Revocable Living Trusts
§ 4.06 Life Insurance
§ 4.07 Transfer on Death Designations on Securities
§ 4.08 Transfer on Death Deeds
§ 4.09 Employment and Retirement Benefits
§ 4.10 Payable on Death Bank Accounts
PART III: DISTRIBUTION AND LIABILITY FOR CREDITOR CLAIMS
§ 4.11 Superwill Statute
§ 4.12 Liability for Creditor Claims
PART IV: FORMS
§ 4.13 Joint Tenancy Affidavit
§ 4.14 Form Transfer on Death Deed
§ 4.15 Form Revocation of Transfer on Death Deed
CHAPTER 5 CREDITOR CLAIMS
PART I: CHAPTER OVERVIEW
§ 5.01 Scope
§ 5.02 Creditor Claims—Overview
PART II: BASIC PROCEDURE—PROBATE
§ 5.03 Identification of Claims Subject to the Statutory Procedure
§ 5.04 Applicable Time Bars
§ 5.05 Method of Giving Notice
§ 5.06 Requirements for Filing a Claim
§ 5.07 Action on Creditor Claims
§ 5.08 Effect of Vacancy of Office of Personal Representative
§ 5.09 Suits Filed Against Decedent During Life and Still Pending at Decedent’s Death
§ 5.10 Claims of Personal Representative
§ 5.11 Claims Against Community Property
PART III: ASSETS SUBJECT TO CLAIMS
§ 5.12 Probate Assets
§ 5.13 Nonprobate Assets
§ 5.14 Community Property
PART IV: NONPROBATE CLAIM PROCEDURE
§ 5.15 In General
§ 5.16 Appointment of Notice Agent
§ 5.17 Payment of Allowed Claims
§ 5.18 Later Appointment of Personal Representative
PART V: FORMS
§ 5.19 Form Notice to Creditors
§ 5.20 Form Cover Letter to Known Creditors
§ 5.21 Form Certificate* of Due Diligence
§ 5.22 Form of Creditor Claim
CHAPTER 6 PROPERTY COLLECTION AND DISTRIBUTION
PART I: CHAPTER OVERVIEW
§ 6.01 Scope
§ 6.02 Property Collection and Distribution—Overview
PART II: INVENTORY
§ 6.03 Preparation and Access
§ 6.04 Content of Inventory and Appraisement
§ 6.05 Use of Inventory and Appraisement
§ 6.06 Additional Inventory and Appraisement
§ 6.07 Challenges to Inventory
§ 6.08 Appraiser Fees
§ 6.09 Claims Against Personal Representative and Beneficiaries
PART III: COLLECTING ASSETS
§ 6.10 Duty to Collect and Protect
§ 6.11 Digital Assets
§ 6.12 Interests in Cannabis and Other Restricted Ownership Businesses
§ 6.13 Interests of Spouses and Committed Intimate Partners
PART IV: DISTRIBUTION
§ 6.14 Ademption and Exoneration of Liens
§ 6.15 Vesting of Title to Real Property at Death
§ 6.16 Real Estate Excise Tax Exemption
§ 6.17 Drafting the Deed, Sale and Listing Agreement and Disclosure Statement
§ 6.18 Tangible Personal Property
§ 6.19 Gifts to Trusts
§ 6.20 Distributions to Minors
§ 6.21 Abatement
PART V: FORMS
§ 6.22 Form Inventory and Appraisement
§ 6.23 Form Personal Representative’s Deed
§ 6.24 Special Warranty Deed
CHAPTER 7 ADMINISTRATION WITHOUT NONINTERVENTION POWERS
PART I: CHAPTER OVERVIEW
§ 7.01 Scope
§ 7.02 Administration of Estates Without Nonintervention Powers—Overview
PART II: GENERAL PROCEDURE
§ 7.03 Estates Without Nonintervention Powers
§ 7.04 General Rule
§ 7.05 Interim Distributions
§ 7.06 Interim Reports
PART III: TRANSACTIONS
§ 7.07 Sale, Mortgage or Lease of Real and Personal Property
§ 7.08 Borrowing Money
§ 7.09 Continuation of Decedent’s Business
§ 7.10 Performance of Decedent’s Contracts
§ 7.11 Priority of Payment of Debts
PART IV: FORMS
§ 7.12 Form Petition for Sale, Lease or Mortgage of Real Property
§ 7.13 Order Authorizing Sale of Real Property
§ 7.14 Notice of Sale of Real Property (sale by negotiation)
§ 7.15 Return of Sale Form
§ 7.16 Petition for Order Directing Sale
§ 7.17 Order Directing Sale
§ 7.18 Petition for Sale of Personal Property
§ 7.19 Order Confirming Sale
CHAPTER 8 TRUST AND ESTATE DISPUTE RESOLUTION ACT: GENERAL PROCEDURES GOVERNING ALL ACTIONS UNDER TITLE 11
PART I: CHAPTER OVERVIEW
§ 8.01 Scope
§ 8.02 TEDRA—Overview
PART II: HISTORY AND SCOPE
§ 8.03 Brief History of TEDRA
§ 8.04 Scope of TEDRA
§ 8.05 Separate Action
PART III: PROCEDURES FOR TEDRA JUDICIAL ACTION
§ 8.06 Summons and Petition
§ 8.07 Notice
§ 8.08 Answer to the Petition
§ 8.09 Initial Hearing
§ 8.10 Trial
§ 8.11 Will Contests
PART IV: DISPUTE RESOLUTION: ARBITRATION AND MEDIATION
§ 8.12 Mediation
§ 8.13 Arbitration
PART V: NONJUDICIAL SETTLEMENT AGREEMENTS
§ 8.14 Authorization for and Requirements of Nonjudicial Settlement Agreements
§ 8.15 Effect of and Uses of Nonjudicial Dispute Resolution Agreements
PART VI: PARTIES TO A TEDRA ACTION OR AGREEMENT
§ 8.16 Necessary Parties
§ 8.17 Virtual Representation of Minor, Incapacitated and Unborn Parties, and Fiduciary Representation
§ 8.18 Court-Appointed Representation
PART VII: MISCELLANEOUS PROVISIONS
§ 8.19 Jurisdiction and Venue
§ 8.20 Attorney’s Fees
§ 8.21 Statutes of Limitations
§ 8.22 Authority of Court to Correct Mistakes
§ 8.23 Authority of Court to Revise Charitable Gifts
PART VIII: FORMS
§ 8.24 Sample TEDRA Agreement
CHAPTER 9 WASHINGTON ESTATE TAX
PART I: CHAPTER OVERVIEW
§ 9.01 Scope
§ 9.02 Washington Estate Tax—Overview
PART II: HISTORY
§ 9.03 Enactment and Litigation
PART III: MECHANICS OF TAX
§ 9.04 Estate Tax Rates
§ 9.05 Taxable Estate-Generally
§ 9.06 Property Subject to Tax
§ 9.07 Filing Requirements
§ 9.08 Farm Deduction
§ 9.09 Family Owned Business Deduction
§ 9.10 Washington QTIP Election-Generally; QDOT Election
§ 9.11 Coordinating the Washington QTIP Election and Federal Tax Planning
CHAPTER 10 FAMILY PROTECTION
PART I: CHAPTER OVERVIEW
§ 10.01 Scope
§ 10.02 Family Protection—Overview
PART II: BASIC AWARD
§ 10.03 Persons Eligible
§ 10.04 Amount of Award
§ 10.05 Time Limits
§ 10.06 Property Used to Satisfy Award
§ 10.07 Effect on Distribution of Estate to Heirs and Beneficiaries
§ 10.08 Exemption from Creditor Claims
§ 10.09 Procedure
§ 10.10 Closing the Estate
PART III: USE OF THE AWARD
§ 10.11 Common Reasons to Petition
§ 10.12 Coordination with Homestead
PART IV: FORMS
§ 10.13 Sample Petition for Award under RCW ch. 11.54
CHAPTER 11 CLOSING THE ESTATE
PART I: CHAPTER OVERVIEW
§ 11.01 Scope
§ 11.02 Closing the Estate—Overview
PART II: SETTLEMENT OF ESTATE WITH NONINTERVENTION POWERS
§ 11.03 Confirming Completion of Administration
§ 11.04 Receipts
§ 11.05 Alternatives for Closing Nonintervention Estate
§ 11.06 Declaration of Completion
§ 11.07 Termination of Personal Representative’s Authority
§ 11.08 Decree of Distribution
§ 11.09 Communication with Personal Representative
PART III: SETTLEMENT OF ESTATE WITHOUT NONINTERVENTION POWERS
§ 11.10 Settlement of Estate in General
§ 11.11 Final Report and Petition for Distribution
§ 11.12 Notice of Hearing on Final Report and Petition for Decree of Distribution
§ 11.13 Hearing on Final Report
§ 11.14 Discharge of Personal Representative
PART IV: FORMS AND CHECKLISTS
§ 11.15 Probate Checklist
§ 11.16 Declaration of Completion
§ 11.17 Receipt and Waiver of Notice of Filing Declaration of Completion
§ 11.18 Final Washington State Estate Tax Release Cover Sheet
§ 11.19 Receipt of Beneficiary
§ 11.20 Declaration Regarding No Taxes Due
§ 11.21 Declaration of Mailing
§ 11.22 Final Letter to Personal Representative
§ 11.23 Receipt of Testamentary Trustee
§ 11.24 Notice of Filing Declaration of Completion
§ 11.25 Notice of Hearing on Final Report
§ 11.26 Final Report and Petition for Decree of Distribution (PR without nonintervention powers)
§ 11.27 Final Report and Petition for Decree of Distribution (PR without nonintervention powers)
§ 11.28 Order Approving Final Report and Decree of Distribution (with accounting)
§ 11.29 Order Closing Estate and Discharging Personal Representative
§ 11.30 Note Regarding Verified Petitions and Oaths
CHAPTER 12 PROFESSIONAL RESPONSIBILITY
PART I: CHAPTER OVERVIEW
§ 12.01 Scope
§ 12.02 Professional Responsibility—Overview
PART II: DEFINING THE LAWYER’S DUTIES
§ 12.03 Identifying the Client
§ 12.04 Duties to Third Parties
PART III: CONFIDENTIALITY
§ 12.05 Continuation of Duty after Death of Client
§ 12.06 Confidentiality Among Multiple Fiduciaries
§ 12.07 Fiduciary Exception to Attorney-Client Privilege
§ 12.08 Disclosures to Beneficiaries
§ 12.09 Disclosure of Client’s Breach of Fiduciary Duty
PART IV: CONFLICTS OF INTEREST
§ 12.10 Representing a Corporate Fiduciary
§ 12.11 Representing Multiple Beneficiaries
§ 12.12 Representing the Fiduciary and Beneficiaries
§ 12.13 Representing the Fiduciary Who is Also a Beneficiary
§ 12.14 Lawyer’s Personal Conflicts
PART V: MULTIJURISDICTIONAL ISSUES
§ 12.15 Out-of-State Property
§ 12.16 Assisting a Client in an Out-of-State Probate
PART VI: MISCELLANEOUS
§ 12.17 Fees
§ 12.18 Scope of Representation
PART VII: FORMS AND CHECKLISTS
§ 12.19 Chart of State Rules on Whether a Lawyer Licensed un Another U.S. Jurisdiction May Engage in Temporary Practice in the State Related to the Lawyer’s Practice in Her Licensing Jurisdiction
§ 12.20 Checklist of Ethical Issues to be Addressed with Client Serving as Personal Representative of Probate Estate
§ 12.21 Sample Engagement Letter for Estate Administration
INDEX
