I have been helping Southwest Washington families with their probate and estate planning for over 20 years.
PROBATE – An Explanation
Probate was created because some family members fight over the assets of an estate. To limit conflicts and make sure things are done correctly, the Superior Court Judge has been made the “traffic cop” to monitor the process.
The Judge makes sure that the will and the law are followed. “The probate of the will” consists of that monitoring process.
WHAT IF THERE IS NO WILL?
Answer: The Legislature has written a will for those who do not write their own. Dying without a will is called dying “intestate”. The Legislature tried to guess who you would want to inherit if you die without writing a will. For instance, if you do not have a will, and you are married, your spouse receives all your community property and one-half of your separate property. Your children receive the other one-half of your separate property. However, there is still a probate to make sure there is not a fight.
WHAT HAPPENS IN A PROBATE?
Answer: The Court determines if the will is valid and the Court authorizes the Personal Representative named in the will to:
- Identify, gather, and protect the assets,
- Pay all creditors and taxes, and
- Distribute the decedent’s assets to the heirs correctly.
HOW DO YOU START A PROBATE?
Answer: Your attorney prepares a Petition explaining the details of the situation to the Judge and at a hearing before the Judge, obtains an Order authorizing the Personal Representative to proceed with probate. The Personal Representative’s authority to manage the decedent’s affairs is set out in “Letters Testamentary”.
ARE ASSETS “FROZEN” IN A PROBATE?
Answer: No. Once the Order starting the probate has been signed by the Judge and the Personal Representative has received his Letters Testamentary, the Personal Representative has access to the assets to pay bills, etc.
HOW LONG DOES PROBATE TAKE?
Answer: Publishing Notice to Creditors is a four-month process. As soon as that four months is over, the probate can be closed if there are no other issues.
WHAT ISSUES CAN THERE BE?
Answer: There are four main categories of possible issues in a probate:
- Heir issues, e.g., disputes among heirs, problems finding heirs, etc.
- Creditor issues, e.g., disputes with creditors, not enough liquid assets to pay creditors, etc.
- Asset issues, e.g., problems locating assets, problems valuing or liquidating assets, etc.
- Tax issues, e.g., federal estate tax, state inheritance tax and/or income tax may be owed.
HOW MUCH DOES PROBATE COST?
Answer: The attorney’s fees for a probate in Washington State are determined by the amount of time it takes to solve the issues listed above. The fewer the issues, the less expensive the probate.
CAN I AVOID PROBATE?
Answer: Trusts and community property agreements are two of the most common ways to avoid probate. An attorney knowledgeable about estate planning can review what is appropriate for you and your family.
Trust or Will – Which is Right for You?
Either a Will or a Revocable Living Trust will pass your assets to your family at your death. Both accomplish the job. Both have pluses and minuses. The most common “minus” cited for a Will is that a Will is probated whereas a Revocable Living Trust is not. However, that is too simplistic an analysis. It ignores the fact that the major portion of the work of a probate is not the court supervision of the process but rather the identification and selling of assets, the payment of debts, and the distribution of assets to the correct family members. That all has to be done when you have a Revocable Living Trust. It is just done without the court supervising that it is done fairly and correctly.
To determine whether a Will or a Revocable Living Trust is best for you, let’s look at some of the relevant issues in each of the categories of “Assets”, “Family” and “Your Goals”. We will look at how those issues influence whether you should select a Revocable Living Trust or a Will.
SOME “FAMILY” ISSUES THAT IMPACT THE TRUST VS. WILL DECISION.
- First Marriage. If you are in a first marriage, do not need tax planning (i.e., your and your spouse’s assets are well under $2 million) and you want everything to go to your spouse and then to your children, often you will choose a Community Property Agreement coupled with a Will, rather than a Revocable Living Trust, as the simplest way to pass assets at death.
- Sibling Rivalry. If your children do not get along too well or do not trust each other, you definitely do not want to use a Revocable Living Trust with one of your children as the trustee. You may prefer to use a Will, and have the probate judge act as a referee to keep things aboveboard and open for all the family to see what is going on.
- Medicaid. If you or your spouse are older and one of you may need Medicaid, you do not want a Revocable Living Trust since it will have to be terminated when you apply for Medicaid. Also, if you are concerned about Medicaid, it may be best for you to use a Will with a Special Needs Trust included as part of the Will.
- Moving out of State. If you and your spouse are likely to move out of Washington, then a Community Property Agreement will not be a good choice since it only works in Washington. In addition, if your move is to a state that does not have community property, then a Revocable Living Trust may help you maintain your assets as community property. This is important because community property has some income tax benefits for the survivor when the first spouse dies.
SOME “ASSET” ISSUES THAT IMPACT THE TRUST VS. WILL DECISION.
- Taxable Estate. If you are married, live in Washington, and your and your spouse’s total assets are or are likely to total more than $2 million, you need to consider a Credit Shelter Trust to reduce your estate tax. A Credit Shelter Trust can be part of a Will or part of a Revocable Living Trust. However, if you need the complexity of a Credit Shelter Trust, then it often makes sense to take the extra step and include a Revocable Living Trust in the planning.
- Out-of-State Real Estate. If you own real estate located in another state, you will have to have a probate in that state too. If you choose a Revocable Living Trust, you will avoid both a probate in Washington and a probate in all states where you own real estate.
- Right of Survivorship. If all your assets are life insurance or IRAs or other assets where you have named beneficiaries to receive the assets after your death, then you may not need a Will or a Revocable Living Trust to distribute the assets after your death.
- Hassle Factor. If you are in the middle of your life, I would rarely recommend a Revocable Living Trust just for the purpose of avoiding a probate since the probate will occur, hopefully, a long time from now. The reason I would not recommend a Revocable Living Trusts is because a Revocable Living Trust has a hassle factor that a Will does not have. A Revocable Living Trust only avoids probate if you successfully retitle all your assets in the name of the Trust. That can be a burden in and of itself, depending upon how many assets you have. But in addition, if you refinance your home, you will have to transfer the home out of the Trust for the refinance and then deed it back into the Trust, every time you refinance. For most people in the middle of life, the goal of keeping their life simple now, trumps any concern about a probate later and thus they chose a Will over a Revocable Living Trust.
- Incapacity. Sometimes I have a client who has no family member who is appropriate to serve as the client’s power of attorney. In that case, we may chose a Revocable Living Trust – not because we are concerned about a probate after the client’s death – but, rather because we want a bank trust department to be the successor trustee to step in and pay bills and make financial decisions, if the client loses capacity.
I have covered some common issues for you to think about as you decide whether you should have a Revocable Living Trust or a Will. Deciding which tool – a Will or a Revocable Living Trust – is better for you depends on many factors in your life. You should remember “one size does not fit all.” What is right for your neighbor may not be right for you. Many people find it a big help to have a knowledgeable estate planning attorney assist them as they think through the legal issues in their particular family and estate.
Planning Ahead for Medicaid
WHAT LEGAL PLANNING SHOULD YOU DO WHILE YOU ARE STILL HEALTHY IN CASE YOU NEED LONG TERM CARE?
This is a question I am asked frequently by my clients who are healthy now but in their late sixties and beyond, thinking about their future.
You are probably like most of us. We all hope that we can live life fully to its natural end and when it is our time to go, we go. Unfortunately, we know that some of us will have a time period prior to death when we may lose our ability to think, act and care for ourselves. The pertinent question is, “What can you do legally ahead of time to make a period of incapacity easier on your family”?
The most important thing you can do is sign a well-thought out power of attorney tailored for your situation.
In your power of attorney, you should thoughtfully select your attorney-in-fact and be sure and name an alternate if your first choice cannot serve as your power of attorney. Another thing you should do in your power of attorney, if you are concerned about Medicaid paying for any long-term care you may need, is to review with an elder lawyer, familiar with Medicaid rules, the type of gifting authority that would be right to add to your power of attorney to meet your goals and Medicaid’s requirements.
Once you have a well-designed “Medicaid-sensitive” power of attorney, another legal document you should consider, if you are married, is a Testamentary Special Needs Trust.
While you are alive, you can add a special needs trust for your spouse to your will. Then if your spouse needs Medicaid after you die, the assets in the trust will be there to take care of your spouse, but will not disqualify your spouse from receiving Medicaid.
A Testamentary Special Needs Trust is powerful Medicaid planning that can be very helpful in the right situation. While you are thinking clearly and able to do good, thoughtful planning, you should review with an elder lawyer knowledgeable about Medicaid whether it is the right strategy for you.
(The above should not be construed as specific legal advice and is intended for general information purposes only.)
Call (360) 816-2485 or click here to request an appointment or to get more information.
Elizabeth A. Perry
Estate Planning Lawyer
805 Broadway Street, Suite 1000
Vancouver, WA 98660
Voice: (360) 816-2485
Voice: (503) 283-3393 ext. 2485
Fax: (360) 816-2486
My practice emphasizes Probate, Revocable Living Trusts, Wills, Medicaid, Elder Law, and Estate Planning issues. I would be happy to have you contact me to schedule an appointment for individual advice regarding your situation.
Elder Law and Estate Planning Attorney in Vancouver, Washington serving Clark County, Cowlitz County, Klickitat County, Pacific County, Skamania County, Wahkiakum County, and Lewis County. Practice areas include: Revocable Living Trusts, Estate Planning, Probates, Guardianships and Wills.
Liz Perry – Vancouver, WA Attorney | Estate Planning – Revocable Living Trusts
Washington State Trusts | WA Revocable Living Trusts