Most people know that they need a will to control how their assets will be distributed after death. However, most people also put off acting on their knowledge. They would prefer not to think about their deaths. At our Shoreline, Washington, law firm, we urge all clients to prepare a will or draft a trust; it is not difficult or expensive.
Attorneys at the Hawkes Law Firm are experienced, concerned and caring. We know that clients may not have settled on guardians for their children. Our experience tells us that they probably do not know how probate works. They may wonder about asset protection. When someone visits our law firm to discuss estate planning, we discuss all these things and more. We give people the information they need to make good decisions that protect their assets and their families.
Wills vs. Trusts
We find that for most of our clients, a will is the best estate planning document. However, some clients have special situations that may be better addressed with a trust. For example, parents with a special needs child may wish to draw up a trust that specifically provides for that child. Clients with real estate in different states are often best served by putting that out of state property in a trust. Whatever their circumstances, our clients rely on our firm to help them choose the best solution for their estate planning needs.
Other Estate Planning Documents
In addition to a will or trust, there are other documents that should be part of a comprehensive estate plan. These include:
Durable powers of attorney: This document gives the person a voice, even if he or she cannot speak or make decisions because of age, illness or dementia. A durable power of attorney allows another individual to make decisions about health care or finances. It can be written to take effect immediately or only when the client cannot make good decisions because of illness or dementia. Clients who know they are at high risk for afflictions such as Alzheimer’s disease should consult with attorneys at our firm who are experienced and knowledgeable about how those diseases can impact the afflicted person and the family.
Living wills: A Living Will is also known as a Health Care Directive. This is a document allowing people to designate in advance the conditions under which their life support should be withdrawn.
Our estate planning lawyers guide clients through the process of understanding these documents, educating the client and family about the consequences of each. When issues fall outside our practice areas, we refer clients to outside attorneys who practice in areas such as tax and patent law.
Probate
Many estate planning attorneys urge clients to use a trust rather than make a will. They argue that avoiding probate and maintaining privacy are key benefits of trusts. At the Hawkes Law Firm, our lawyers believe that wills are great options for most people, that probate is not that difficult and that the danger of publicity has been overstated. Probate in Washington is easy, inexpensive and quick if the will was properly drafted. And often a probate results in many debts being erased, providing more assets for the survivors.
Educating Clients About the Probate Process
Most people are unclear about the role probate plays in settling an estate. It is very straightforward and involves paying the properly claimed debts of the deceased, collecting and appraising the assets, and distributing those assets as directed by the will. Our attorneys guide heirs and personal representatives (executors) through the process, making sure they understand their options at all stages of probate.
How We Help With Probate
Our attorneys perform the following tasks to help clients with probating an estate:
- We meet with the personal representative (also known as the executor) named in the will or primary beneficiary (if there is no will)
- We prepare documents to be filed with the court, including notice to creditors and request to appoint the executor
- We present a petition to initiate probate to the court on behalf of the executor
- We publish the notice to creditors as well as notices to heirs and relevant government departments
- We assist with establishing estate accounts for consolidating the deceased’s assets
- We assist with paying taxes and other debts
- Once the period for accepting creditor claims has ended and all debts are paid, we advise the executor how to distribute the remaining assets
Most clients do not initially know that if creditors do not properly present their claims against an estate within the period allowed by the court, they cannot seek payment later on, even if the amount owed is significant. In many probates thousands of dollars worth of debts owed to major banks and credit card companies get erased, leaving more assets for the heirs of the decedent.
Probate FAQ's
Washington’s probate system is among the simplest and least expensive in the nation. Probate is the legal procedure for settling the affairs of an individual who has died and for transferring the decedent’s property to the rightful beneficiaries. The procedure validates the will and appoints a Personal Representative to administer the estate.
A will contest is a legal action that challenges the validity of a will and/or the terms of the will. A will may be invalid if it was the result of forgery, undue influence, inadequate execution, or other issues.
Non-probate assets can be transferred without oversight by the probate court. Some examples of non-probate assets are proceeds from life insurance policies, an IRA account, a 401(k) account or any other taxed deferred retirement plan account with a named beneficiary.
The executor, also known as the Personal Representative, is responsible for initiating the probate proceeding, collecting and inventorying assets, paying debts owed by the estate, filing and paying taxes, distributing assets to the beneficiaries, and closing the estate. Because of the numerous details and technical requirements that must be satisfied, attorneys experienced in probate and estate administration are often employed to guide the executor through the probate process. The executor is entitled to compensation for time and expenses spent during the process.
Washington is a community property state. If you and your spouse have signed a Community Property Agreement, all assets will pass to the surviving spouse without the probate process. There are several methods to use to avoid the probate process. These methods include creating a joint ownership with right to survival in property such as real estate, automobiles and other titled property; making beneficiary designations on accounts such as payable-on-death (POD) bank accounts and transfer-on-death (TOD) securities; and placing property in a revocable living trust. Your attorney can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.
The Washington probate process requires at least four months to complete, However, the probate process can be slow and can tie up property any where from several months to several years. In addition, it can be costly since attorney fees, executor fees and court fees are paid out of the estate.
In the absence of a will, property will be distributed through a process known as intestacy. If someone dies intestate, the community property passes to the spouse or state registered domestic partner. If there are surviving children, the surviving spouse will also receive one half of the decedent’s separate property. If there are no surviving children, but one or more of the decedent’s parents survive, the surviving spouse receives three quarters of the net separate property in addition to the community property. There are additional levels of distribution if there are also no surviving parents, the probate attorney can explain this if necessary.
A revocable living trust is a type of trust that takes effect during the testator's life and can be changed or terminated at any time with the property returning to the testator. The testator also can retain control over the property in the trust by naming themselves as the trustee and naming a successor trustee to take over trust administration at the testator's death. These trusts are often used as a means to avoid probate because the title of property is transferred to the trust and is not considered property of the testator at his or her death, thus making the property unavailable for probate.
Will Contests
People who have made a will think they have done everything they need to do to protect their families and their assets. And this is true in most instances. However, in some cases, a will is contested as it goes through probate. Someone objects to its provisions and endeavors to overturn it in favor of another arrangement.
At the Shoreline, Washington, law firm, Hawkes Law Firm, our lawyers defend and prosecute will contests. Because of this aspect of our practice, we understand the importance of ensuring that any wills or trusts that we draft can withstand the scrutiny of a contest. When we believe there may be some doubt about the competency of the person, for example, we will video them to demonstrate their competence when they made the will.
Issues in Will Contests
Wills can be contested on a wide variety of grounds. Our law firm has handled will contests in which the plaintiffs charged:
- Undue influence by a caregiver or relative
- Lack of capacity to execute a will
- The will probated was not the correct will
- The language of the will is unclear
- Fraud committed to influence the person making the will
- Misconduct of person holding power of attorney
We represent proponents and defendants in will contests and inheritance disputes. When estate administration problems such as these arise, it is important to have an experienced attorney to help. Our litigation experience is very helpful these circumstances; many estate planning lawyers don’t litigate at all so they have no awareness of complex evidentiary and procedural issues that may be helpful or hurtful in a will contest.
Educating Our Clients About Their Options
We are known as caring advocates who provide people with all the information they need to make decisions about will contests. We counsel clients about the best course of action. In some instances, the best course of action may be to include someone who was wrongfully omitted from the will. It is almost never easy to overturn a will, even when everyone agrees that this is the best course of action. Our attorneys advise people about their options.
To learn how our lawyers can assist you with wills, trusts or probates, contact our Shoreline law firm by calling 206-367-5000.