Probate is probably the most misunderstood area of Estate Planning. It’s often thought of as something you should avoid at all costs. This is for good reason, if you don’t have a good Estate Plan or if you live in a state where Probate is complex, expensive and completely unnecessary. In those situations, it definitely should be avoided.
However, Probate is not always a bad thing. In fact, it can be a very good thing, especially in Washington.
What is Probate?
Probate is the legal process to administer an Estate once someone has died. In a nutshell, the Will is filed with the court, the court grants authority to the Executor (also known as the Personal Representative) who administers the Estate, making sure creditors are paid and assets distributed to the beneficiaries. It can be a simple and efficient process, assuming the Estate Plan was set up well.
Who administers the Estate?
The Personal Representative named in the Will administers the Estate. However, if for any reason that person cannot or should not serve, another qualified individual will be appointed by the court as the Personal Representative.
The Personal Representative must:
- Assemble all the decedent’s assets;
- Pay the bills (funeral expenses, creditors, taxes, and general administration expenses);
- Distribute the remaining assets to the beneficiaries of the Estate.
File the Will
State law requires that anyone in possession of the original Will of a Washington resident file it with the court within 40 days following death. Filing of a Will must happen regardless of whether or not the Estate will be probated. The Will should be filed with the Clerk’s Office of the Superior Court in the decedent’s resident county at death.
Why Would You Want a Probate?
In Washington, there are situations where Probate can be beneficial to an Estate and its beneficiaries, especially to protect assets from Long-Term Care costs, creditors, and the State.
Protection Against Long-Term Care Costs
A Will with an Asset Protection Trust protects assets, shielding them from the State and Medicaid. Your surviving spouse will still have the benefit of your assets, but there’s no need to spend down any of that money to qualify for Long-Term Care benefits under Medicaid. Nor does Medicaid’s Five-Year Lookback rule apply. For more information about Medicaid’s rules, please read our previous article “What is Medicaid’s Five Year Lookback Period?”.
Revocable Living Trusts
A Revocable Living Trust is an Estate Planning tool used to avoid Probate. Because of how easy and relatively inexpensive Probate can be in Washington, a Revocable Living Trust is most useful if you own property in other states. Oftentimes, such Trusts are misunderstood and both a Revocable Living Trust administration and a Probate is required.
A Revocable Living Trust actually can be harmful to an Estate if your loved one needs Long-Term Care. Medicaid provides Long-Term Care benefits, and its rules are very specific: It is only through a Probate and a Will with an Asset Protection Trust that you can protect assets for your surviving spouse. If you have a Revocable Living Trust, you cannot protect your money against spenddown for Long-Term Care costs.
Washington Probate laws are well-defined, but the legal advice of an Elder Law Attorney will help you make sense of what is needed to administer your loved one’s Estate. For help with Probate and other Estate Planning needs, call Elder Law Group at 509-468-0551 today.