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Washington State Probate and Sales of Real Property

Probate is the legal process of settling a decedent's estate and transferring any remaining assets to those entitled to receive them. Procedures for probate of wills and distribution of estates are codified at RCW Title 11.

When a decedent dies leaving a will, the estate is said to be testate. If a decedent does not leave a will or the will is not found valid by the court, the estate is intestate. Persons named in a decedent's will to inherit a part of the estate are called devisees.

Any assets not disposed of by will are distributed to heirs at law in the order specified at RCW 11.04.015. Typically, all assets titled solely in the decedent's name are subject to probate. Nonprobate assets include interests that pass with a right of survivorship, by transfer on death, or by community property agreement, and assets held in a grantor trust (RCW 11.02.005(10)).

Washington is a community property state, meaning that, upon the death of the first spouse, a one-half share of the community property, property acquired during the marriage, succeeds to the surviving spouse, with the other one-half share subject to disposition by the decedent's will, or descending according to the laws of descent and distribution codified at chapter 11.04 RCW. All the community property is subject to probate administration, however; this means that it may be used for payment of debts of the community (11.02.070).

In Washington State, title to a decedent's real property vests in his heirs or devisees at the time of death, subject to debts, allowances, and expenses of administration (RCW 11.04.250). The probate process is necessary to settle claims against the estate and ensure the marketable transfer of title.

In a formal probate proceeding, the custodian of the will delivers the will to the appropriate court or the executor named in the will (RCW 11.20.010). To open probate, apply for probate and appointment of a personal representative to the judge of the court (11.20.020). The superior court of the county where the decedent resided at the time of death handles probate cases.

Short-form probates, or settlements without intervention, are also available under Washington probate law. Seek qualified legal advice when considering probate options.

Washington's Revised Code outlines the priority of persons to serve as personal representative (PR) of the estate. The PR serves in a fiduciary capacity to settle the estate under the supervision of the court. This includes filing all necessary legal paperwork, such as inventories, accountings, and notices, filing taxes, and paying claims, family allowances, and expenses of administration, among other duties.

The court issues letters testamentary to the executor named in the decedent's will. When the executor is unwilling or unable to serve, the court will issue letters of administration with the will annexed to the appointee (RCW 11.28.010). If the decedent died intestate, or without a will, an interested person may apply for letters of administration by filing a petition with court giving the names and address of heirs and fact that the deceased died without a will (11.28.110). Letters of administration are granted in the order established at RCW 11.28.120. A surviving spouse is entitled to administer any community property, unless the will provides otherwise (RCW 11.28.030). If the surviving spouse fails to apply for appointment within 40 days of the death, he or she is presumed to have waived the right to administer (11.28.030).

The appointed PR is required to provide written notice of appointment to each heir, legatee, and devisee within 20 days, with proof of notice given by affidavit filed with the court, and also give notice to the department of revenue within 60 days (11.28.237). RCW 11.40.020 establishes the requirements for filing notice of appointment to creditors.

Under the current laws, a personal representative is not authorized to make a sale of any property from an estate without an order of the court (RCW 11.56.010). The personal representative must present a petition to the court describing the estate's property and the amount of debts, obligations, and expenses of the estate so that the court may determine the necessity of the sale. No notice of the hearing of the petition for sale is required, unless the court should so order. Only when a will directs property to be sold or gives authority to the executor to sell property can the PR act without order of the court (11.56.250).

The court may order a sale to raise money to pay the debts and obligations of the estate and expenses of administration, estate taxes, or for the support of the family; to make distribution; or "for such other purposes as the court may deem right and proper" (RCW 11.56.010). Following a confirmation of the sale, the court directs the PR to execute and deliver the deed conveying title to the purchaser. A conveyance after confirmation of sale conveys all the estate, rights, and interests of the decedent at the time of death and any interest acquired by the estate (11.56.120).

A personal representative's deed follows the statutory form of a bargain and sale deed under RCW 64.04.040, containing covenants that the granting party is, at the time of the conveyance, seized in fee simple of the estate; that the estate is free from encumbrances made by the grantor; and for quiet enjoyment against the grantor, his heirs and assigns, unless otherwise limited by express words contained in the deed.

A PR deed names the PR as acting in a fiduciary capacity on behalf of the estate. A lawful deed includes the grantee's name, address, marital status, and vesting information, as well as a full legal description of the parcel, the consideration made for the transfer of title, a recitation of the derivation of title, and any restrictions on the property. A PR deed must meet standards of form and content for documents relating to real property in Washington. Include a cover sheet where applicable (RCW 65-04-045). The PR must sign in the presence of a notary public for a valid transfer and record the deed in the land records of the county where the real property is situated.

Sales of real property in Washington are subject to an excise tax under RCW 82.45.060, unless an exemption under RCW 82.45.010 is noted on the face of the instrument of transfer. Both parties to the transaction must fill out a real estate excise tax affidavit. In order to receive an exemption under RCW 82.45.010(3)(a) from the tax (a transfer by gift, devise, or inheritance), additional documentation is required. Depending on the situation, this may include a certified copy of a community property agreement; a certified copy of the death certificate; a copy of the relevant portion of a trust instrument; a certified copy of the letters testamentary/letters of administration; or a certified copy of the court order requiring the transfer (RCW 82.45.197).

Consult an attorney with questions about using a personal representative's deed, or for any other issues related to transferring a decedent's real property in Washington.

(Washington PRD Package includes form, guidelines, and completed example)