Don’t let fear of probate stop you dead in your tracks
September 10, 2017
By: Mark Harvey
Email: harvemb@dshs.wa.gov
Probate.
A lot of us just stopped dead in our tracks (some things I just CAN’T resist); well, after all, “death” and “probate” go together, right?
And, sometimes, I’m not at all sure which one of those two things some of us fear the most!
Due to the fact that, not long ago, I found yet another opportunity to go on about making a will (which, by the way, I will continue to do at every possible opportunity), I was asked by several of you to go on about probate.
Let’s back up a touch. The reason that I go on (and on and on and…) about making a will is two-fold: (a) it’s the only way to be sure that our stuff goes where we want it to go when we step off the planet, and (b) it makes life a LOT simpler for the folks we’ve left behind, who are now blessed with the task of cleaning up our mess.
So, unless we pointedly dislike everybody to whom we are related (or with whom we are even vaguely associated), making a will is going to significantly improve the quality of life for the living – Got it? OK.
Now, probate: This is NOT California. This is Washington. They are NOT the same thing.
I say that because a lot of us have a disproportionate terror of probate, often because we’ve heard horror stories of mega-expensive, unbelievably complicated probate proceedings in California – STOP! This is Washington, and things are different here: It’s much less expensive, much less complicated and consumes WAY less of the estate than might be the case elsewhere, so let’s all relax a bit.
Probate is a legal process for administering the estate of someone who has moved onto better things. It involves the collection of assets, determining who-gets-what (WILL!) and letting those people/entities know that, paying off debts, filing applicable tax returns (and paying applicable taxes) and distributing the assets to the proper beneficiaries (WILL!).
“Probate assets” are assets that are titled in the decedent’s name alone, so let’s try a different question: What AREN’T “probate assets?”
Well, joint bank accounts with rights of survivorship, property held in joint tenancy, property subject to a community property agreement (or a trust), life insurance and any other assets that pass by contract or have some type of beneficiary designation. Confusing? OK, think about the life insurance example above.
Life insurance policies have a beneficiaries, right? So, if I buy a $100,000 policy and designate you as the beneficiary (don’t get excited, because I have no intention of doing that), that’s that for that: I kick-off, you get the money. Period. No question.
Get the drift? So, any of our assets which are already clearly designated to go here, there or wherever don’t need to be probated, because there’s nothing that needs to be settled; so, if it were me (which it is), I’d want to make sure that anything/everything I can designate ahead of departing the planet gets designated, thus reducing/eliminating the need for probate.
In other words, think about it as an integral part of the whole will-making thing: We clean up and organize our acts, so someone else won’t have to.
Now, if we’re off into Marriage # 5 or 6, and there are kids from different marriages who we want to have inherit this-or-that AND we own property in Delaware or Bolivia OR I just kept that $1,000,000 CD a little secret in my name only, probate starts kicking-in, but a lot of us just haven’t managed to complicate our lives to that extent.
Reality check: IF probate is actually necessary, it can be more complicated than anything we could pretend to address here. The Washington State Bar Association has a nifty little two-pager on probate that you can get at (get ready, because this is long): https://www.wsba.org/Consumer-Info-Probate.ashx Whew!
Now, do we all remember that I am NOT an attorney? Good! And do we all remember that I am NOT a financial or estate planner? Excellent! Then, if your life is complex enough (or wealthy enough) to warrant the engagement of these professionals, please do so. We wouldn’t go to a shoe store for podiatry treatment, so let’s remember who’s good at what.
That said, a lot of us can do ourselves and the people we purport to love a lot of good by doing our homework and “prep work” BEFORE the time comes, and let’s do one more piece “out loud:”
Preparing for death does NOT summon death, any more than buying homeowner’s insurance summons a meteor shower – It just doesn’t work that way.
Fear (or superstition) paralyzes. Love acts.