Elder Law Group Blog

6 Essential Steps to DIY Probate

Jul 21, 2021 | Probate Law

Probate can be complicated and knowing where to start and what essential steps are needed will help you successfully navigate this process.

First, what is Probate? Probate is the legal process of settling the estate of a decedent – the legal term for someone who has passed away. In practice, this means that a person is appointed by the court to serve as the “Personal Representative” of the decedent’s estate. The Personal Representative is responsible for gathering up and managing the decedent’s assets, identifying and paying the decedent’s creditors, and ultimately distributing the estate assets to the people entitled to receive them. Along the way, the Personal Representative also must comply with legal formalities such as filing documents with the court and notifying interested parties about the probate.

Step number one: Open the Probate

This step is usually taken fairly soon after someone passes – typically between one to two months after a death occurs.

Even before opening a probate, you will need to identify the person who will serve as Personal Representative. If the decedent had a Will, the person nominated in the Will has the right to serve as Personal Representative. If there is no Will, Washington law governs who has the right to serve as to Personal Representative. The surviving spouse has the right to serve first, followed by adult children, and then more distant relatives. Even if you have the right to serve as Personal Representative, you can always say no. If you decline to serve, the next person in line will then decide whether or not to take on the role.

To open a probate, you, as Personal Representative will file a set of legal documents – called pleadings – with the court. The most important pleading is the Petition to open probate. The Petition summarizes for the court all of the relevant facts of the case, including:

  • The decedent’s name, date of death, and where the he or she lived
  • Whether or not there was a Will, and, if so, the relevant details about the Will
  • Whether the estate is solvent – that is, whether the estate has more assets than debts
  • The names and addresses of the decedent’s family members and named beneficiaries

You will also need to sign a sworn oath stating that you are qualified, willing, and able to serve as Personal Representative. Once the judge determines that the Will, if there is one, is valid, and that you are qualified to serve as Personal Representative, he or she will sign an order admitting the Will to probate and appointing you as Personal Representative of the estate, thus officially opening probate

Step number two: Notify Interested Parties of the Probate

Within 20 days of your appointment as Personal Representative, you must provide notice of your appointment to each individual named in the Will. You are also required to give notice to certain family members – known as the heirs-at-law – even if they are not named in the Will. You can identify the heirs by researching Washington’s probate code. (RCW 11.04.015) Heirs-at-law are the people who inherit if there is no Will. 

Providing formal notice alerts the beneficiaries and heirs of the probate’s existence and gives them the opportunity to challenge either the Will or your appointment as Personal Representative. Any party who received proper notice and failed to make a timely objection is prevented from later objecting months or years down the line. 

In addition to notifying the beneficiaries and heirs of your appointment, you must also notify the Washington State Department of Social and Health Services Office of Financial Recovery and the Department of Revenue. The state agencies will then review their records to determine if the decedent, or any beneficiary, has any unpaid obligations to the state, such as outstanding child support or back taxes.

Step number three: Gather Estate Assets

Gather assets and information. You will need to conduct a thorough review of the decedent’s assets. 

  • This includes a thorough search of paperwork to determine the location and account numbers of any bank and brokerage accounts, stock certificates, bonds, real estate deeds, and insurance policies. 
  • You will need to determine if the decedent had any safe deposit boxes and if so, examine its contents. 
  • You will need to speak with life insurance agencies and obtain claim forms, apply for death benefits from the Social Security Administration, Veterans Administration and/or employer pensions
  • Plus locate and inventory all automobiles, furniture, jewelry, and other possessions.

As you gather assets, you will need to create a formal estate inventory, listing each asset and the value of such asset as of the date of death.  Paid appraisals may be necessary in order to substantiate the value of certain assets, such as for real estate that is not sold, or investment accounts. The purpose of the valuation is for capital gains tax treatment, which can be a very important benefit to the person who inherits the asset. The inventory does not usually need to be filed with the court, but you must produce a copy on demand if it is requested by a beneficiary, heir, or creditor.

Step number four: Evaluate and Pay Creditor’s Claims

One of your responsibilities is to investigate whether the decedent had any debts. This requires you to review financial records and determine whether there are any outstanding loans (such as mortgages or auto loans) or other debts, including credit cards. 

As the Personal Representative, it is your duty to inform all of the decedent’s creditors of his or her death. There are two ways that you notify creditors:

  • You must send personal notice of the probate to any creditors that you know about. 
  • Next, you need to publish notice in the newspaper to alert any unknown creditors about the probate. 

If you follow the proper procedures for notifying creditors, creditors only have four months to make their claim. However, if you don’t follow the proper procedures, creditors will have two full years to bring a claim against the estate or its beneficiaries.

Step number five: Manage and Distribute Estate Assets

It is the responsibility of the Personal Representative to gather, manage, and protect the assets of the estate throughout the probate process. Depending on the character of the estate, this can involve setting up bookkeeping records, opening an estate checking account, selling real property, collecting dividends and interest, paying bills, filing tax returns, collecting receipts for expenditures, maintaining insurance on assets, and even supervising a business interest.

Once the taxes and other estate expenses have been paid, any real property needs to be sold has been sold, and all creditors have been dealt with, it’s time to distribute the estate assets to the people entitled to receive them.

Before distributing any assets to a beneficiary or heir, the Personal Representative should make sure to have that person sign a receipt to prevent any future dispute regarding the inheritance.

Step number six: Close the Probate

After all of the estate assets have been distributed, you are ready to close the estate. To do that, you will need to prepare two final pleadings: a Declaration of Completion of Probate, and a Declaration of Review for Creditors.

You will summarize for the court all of the work that you did as Personal Representative to administer the estate through probate and your efforts to locate and notify the decedent’s creditors.

The two declarations, together with the signed receipts from the beneficiaries, will be filed with the court. Assuming that there are no objections, the estate is automatically closed after 30 days and you are officially discharged from your duties as Personal Representative. In other words, probate is complete.

You can download our free probate checklist here.

Topics Not Covered

  • Tax Returns, Estate Taxes and other Tax Issues
  • Who must the decedent provide for? Spouse, minor children and significant others – under a doctrine known as Committed Intimate Relationship – this comes as a Big Surprise to a lot of people!

For more information about probate, and other estate planning topics, visit our YouTube channel.

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