Legally, there are four tasks in opening a probate estate:Having the Court admit the Decedent's Will to probate (ie, "prove" the Will), if the Decedent died with a valid Will. Having the Court appoint you as Decedent's Personal Representative, giving you the legal authority to administer the estate. Having theCourt, in your appointment, grant you Nonintervention Powers, allowing you to administer the estate without your having to obtain the Court's prior approval for any further action you desire to take on behalf of the estate. For you then to send notice of your appointment to interested parties, namely, Decedent's heirs and beneficiaries and the state and federal governments, giving each of them the opportunity to take any actions they believe appropriate to protect their own interests as regards Decedent and the estate.
If this is your "first time in Court," WASHINGTON PROBATE hopes that you will find the Court personnel, the Judges, clerks, and other administrative staff, to be both knowledgeable and helpful (if a little harried due to the workload), and your Court experience itself to be a remarkable example of society and democracy at work on a day-to-day basis (if a little hectic and seemingly disorganized).
This is the "doing your homework --- getting your ducks in a row" phase, so that when you do go to Court, you'll sail through and come out with the prize --- your Letters, authorizing you to administer the estate.
Washington law no longer requires a Death Certificate for the Decedent to open a probate; nevertheless, some Judges may wish to review one, for example, to obtain independent evidence whether Decedent was survived by a spouse. If convenient, obtain a certified copy of Decedent's Death Certificate and take it with you to the hearing. There is no need to file it; simply have it available to hand to the Judge if he/she asks for it.
A probate for a Washington resident may be filed in the Superior Court of any county in Washington.
Bottom-line: As long as the Decedent died a resident of Washington or within Washington, a Washington Superior Court will have subject matter jurisdiction over (ie, legal authority to adjudicate) your case. RCW 11.96A.040(1) Personal Jurisdiction
Bottom-line: As long as all the parties to the probate have physical presence within Washington or willingly submit to the Court's jurisdiction, a Washington Superior Court will have personal jurisdiction (ie, legal authority) over the parties to your case. Venueñ
Every new matter filed in a Washington Superior Court requires the filing of a Superior Court Case Information Cover Sheet. King and Pierce (and perhaps other) Counties have their own version of it. Select, complete, and sign the appropriate form from among the following three alternatives:King County:
Bottom-line: If you are in possession of a Will of a Decedent, Washington law requires you to either promptly:File it with the Court (See: Procedure for Filing Decedent's ), or Deliver it to the person named in the Will as Decedent's Personal Representative (for his/her filing of the Will, usually together with a Petition for Letters). RCW 11.20.010
The Issue: You need to be officially appointed by the Court as Decedent's Personal Representative,authorizing you to administer the estate. Upon its appointment, the Court will direct the Clerk to issue you a document, known as Letters, officially evidencing your appointment.
Bottom-line: You are eligible to obtain Nonintervention Powers if:The combined probate and nonprobate estate is solvent (ie, has more assets than debts), AND Any of the following three situations is true (RCW 11.68.011(2)): If Decedent died testate: Decedent's Will names the petitioner as Decedent's Personal Representative; OR If Decedent died intestate:The petitioner is Decedent's surviving spouse, andDecedent's estate consists ONLY of community property, andAt the time of filing the petition, all of Decedent's living children are also the petitioner's children (eg, Decedent has no living children of a prior marriage); OR The "Catch-all" provision applies:The petitioner was not a creditor of Decedent at Decedent's death, andIt would be "in the best interests of Decedent's beneficiaries and creditors" if Decedent's estate were administered with Nonintervention Powers, with that being presumed to be true unless an interested party can prove otherwise.
Note: Obtaining Nonintervention Powers under the "Catch-all" provision, however, requires either Notice to, or the written Consent of, each heir and beneficiary --- see 7.b below.
● You qualify for Nonintervention Powers under any but the "Catch-all" provision, and
After the Court appoints you as Decedent's Personal Representative but before the Clerk will issue you Letters, you must file an Oath of Personal Representative (and any Bond that may be required). RCW 11.28.170
If Decedent named you to serve as his/her Personal Representative, complete the Header of an
Unlike most other forms that you will use during your administration, all oaths of office must be "notarized." RCW 9A.72.085. So partially complete the appropriate Oath, take it to a notary, sign it in front of the notary, and have the notary "notarize" your signature.
12. Resolving Issues Surrounding Payment of Compensation to You as Personal Representativeñ
In consideration of your rendering services to the estate as Personal Representative, you are entitled to receive payment of compensation. If you wish to receive compensation for your services as Personal Representative, experience indicates that it is best to resolve issues surrounding your compensation before obtaining your Letters. See: Payment of Compensation to the Personal Representative & His/Her Attorney.
The Issue: Filing a Probate Notice of Creditors is the first of the statutory steps required in order to force Decedent's creditors to promptly present their claims or be barred (in most cases) within the four-month Creditor's Claim statute of limitations period.
Choose a legal newspaper in the county of Decedent's residence at death to publish your Probate Notice to Creditors and coordinate with them the date that it will be first published. See: Legal Newspapers & Costs of Publication. Add that date to the line stating "Date of First Publication of this Notice." Ignore for the moment the line stating "Decedent's Social Security Number."
If Decedent died over twenty months ago, then there is no reason to file and publish a Probate Notice to Creditors. (Exception: If you probate the estate in a county other than Decedent's resident county at death, you are required to file and publish a Probate Notice to Creditors in the county of Decedent's residence at death).
Telephone the County Clerk in the county where your probate will be filed (Telephone Numbers) and ask to speak to the probate clerk:Determine the days and times when the Court is available to hear probate Petitions for Letters.
Attach to your Notice a copy of Decedent's Will and make sufficient copies of that combined document (Notice + Will). Mail a copy of that combined document to each of the persons and at the addresses listed in Paragraph 4 of your Petition for Probate or Petition for Letters of Administration With Will Annexed. File that combined document (original Notice + copy of Will) with the Court (submitting a copy of that combined document for conformation and return to you).
Timing: Within 20 days of your appointment.
Side-bar: Although not required by the pertinent statute (RCW 11.28.237), Constitutional due process requires that a copy of any Willof Decedent that was admitted to probate be included with the Notice of Appointment. This gives all recipients notice of the Will's contents, so that if anyone desires, he/she may timely file a Will Contest. See Estate of Young, 23 Wn. App. 761 (1979).
b. If Decedent Died Intestate: Complete and sign a
Make sufficient copies of your Notice of Appointment. Mail a copy of your Notice of Appointment to each of the persons and at the addresses listed in Paragraph 4 of your Petition for Letters of Administration. File the original of your Notice of Appointment with the Court (submitting a copy of it for conformation and return to you).
Timing: Within 20 days of your appointment.
Problem: An Heir or Beneficiary Resides Outside of the United States. Then:Give Notice of Appointment of the Personal Representative by letter to the consulate of the foreign nation in which the Heir or Beneficiary resides, and File a copy of the letter with the Court.
For further information, contact:
U.S. Department of State
Office of Foreign Missions
2202 "C" Street NW, Room 2238
Washington, D.C. 20520
Problem: If Any Heir or Beneficiary Is Missing. Then file a Petition with the Court:Showing that the person is an heir or beneficiary, and that his/her name or address cannot be reasonably determined, and Asking the Court for an Order allowing notice to be given to such person by publication. RCW 4.28.140 and following.
2. To Washington Department of Social & Health Services ("WDSHS") ñ
RCW 11.28.237(2) and 11.40.020(1)(d) require you to give written Notice to WDSHS. Before doing so, however, you will need to decide whether or not to publish a Probate Notice to Creditors(and, technically, do so within 30 days of your appointment). See: Handling in general andWhy Publish a in particular. WASHINGTON PROBATE strongly urges you to publish a Probate Notice to Creditors unless Decedent died over twenty months ago or you believe your specific situation is such that no reasonable benefit is likely to be gained from publishing --- for example:You are confident that you are fully aware of not only all of Decedent's potential creditors but also the amount and nature of each potential claim, You have no question that each potential claim is legitimate, and You intend to pay each fully and promptly.
Practically speaking, however, all it takes is one unforeseen, illegitimate, or dilatory Creditor's Claim to be filed and presented against the estate to make publishing a Probate Notice to Creditors(generally around $100) a remarkably sound investment. Please think long and hard before foregoing this opportunity.
Caution: The Notice sent to WDSHS is required to contain Decedent's Social Security Number, but GR31 prohibits filing Social Security Numbers with the Court. Consequently, make sure that you place Decedent's Social Security Number on the copy of any form you send to WDSHS but not on any form that you file with the Court.
a. If you DO intend to publish a Probate Notice to Creditors within 30 days of your appointment:Follow the procedure for filing and publishing a Probate Notice to Creditors --- see: Publishing a . Follow the procedure for: Adding Decedent's Social Security Number to a copy of your Probate Notice to Creditors and mailing that documentto WDSHS, and Preparing a Declaration regarding these actions and filing it with the Court --- see: Giving Notice to WDSHS. Timing: Publish your Probate Notice to Creditors within 30 days of your appointment and thereafter promptly:Add Decedent's SSN to a copy of it, Mail that copy to WDSHS, and Prepare and file the Declaration with the Court.
b. If you DO NOT intend to publish a Probate Notice to Creditors within 30 days of your appointment:Download a Notice of Appointment of Personal Representative and Pendency of Probate to WDSHS & Declaration of Mailing form.Complete and sign theform. Make a copy of it, add Decedent's Social Security Number to it, and mail the copy to the WDSHS at the address shown on the form. (It would be good practice to make and keep in your files a copy of the copy sent to WDSHS, as evidence that you complied with the WDSHS notice requirements.) File its original (without Decedent's Social Security Number) with the Court (with a copy for conformation and return to you).
Timing: Within 20 days of your appointment.
3. To Washington Department of Revenue ("WDRev") ñ
Download and print for your files the following IRS Publications and Forms:Publication 559: Survivors, Executors, and Administrators(general information) Form SS-4(Application for Employer Identification Number ("EIN"), to apply for a "Tax ID Number" for the estate. The Tax ID Number of an individual is his/her Social Security Number. The Tax ID Number of an estate, trust, or business is its EIN. Instructions for Form 56(Notice Concerning Fiduciary Relationship, to inform the IRS of your appointment, name, address, etc.)
If you submit a Form SS-4 by mail, it will likely take a month or two until you receive your EIN for the estate. You need your EIN in order to file a Form 56, which you should do promptly upon your appointment. Fortunately, you can apply for an EIN by either:Internet or Telephone --- and receive your EIN immediately.
To apply by telephone:Complete and sign the Form SS-4 as if you were going to mail it. Telephone 800 829-4933 between 7:30 AM and 5:30 PM Eastern Time (the IRS facility is in Philadelphia). Give the IRS representative your information. He/she will assign you an EIN and may request that you mail the original of your completed and signed Form SS-4 within 24 hours to a specified address.
Now that you have your EIN, complete and sign the Form 56, and mail its original to:
As Decedent's Personal Representative, your Letters evidence your official grant of authority. Chances are that when you deal with a third party on behalf of the estate, the third party (eg, a bank or brokerage) may want to see and possibly keep for its records, a copy of your Letters and may require additional evidence of your authority, such as:A Court-certified copy of your Letters, or A copy of your Letters that has been certified within so many days, eg, 10, 30, or 90, or Not only a certified copy of your Letters but also a sworn statement that your Letters are current and have not been revoked. This statement is known as an "Affidavit of Personal Representative." To prepare one, download, complete, and have notarized whichever of the following two forms is appropriate: Affidavit of Personal Representative (with Will)form.
You have now completed the steps required to open a typical probate estate and give notice of your appointment as its Personal Representative. Your next step is to begin your administration of the estate.
Estate Planning & Probate Glossary
ABATEMENT Decedent's debts, taxes, and other costs of administration are required to be paid before any gifts may be distributed. If the estate contains insufficient assets to pay such debts, taxes, and costs, then the priority order in which estate assets are used to pay such expenses is known as "abatement" and, in Washington (RCW 11.10.010), is as follows:
ADJUSTED BASIS At first blush,the amount of one's ongoing monetary "long-term investment" in an item of property for income tax purposes.Following the acquisition of an item of property, its initial (or "cost") basis over time and from time to time is:
A. Increased by costs such as:
Improvements having a useful life of more than a year;
Extension of utility lines to the property;
Legal fees (such as for defending or perfecting title or for decreasing its property tax assessment);
Restoration of property following casualty and theft losses; and
Zoning costs; and
B. Decreased by such things as:
Depreciation taken on the property;
Investment credits taken; and
Insurance reimbursements received as a result of casualty or theft loss;
Administrator of Undistributed Assets (aka Administrator de bonis non): An administrator appointed to replace a personal representative who has not completed the settlement of an estate due to incapacitation, death, or removal by the court.
Administrator With the Will Annexed (aka Administrator cum testamento annexo or as Administrator CTA): An administrator appointed to administer the estate of a decedent who died with a will but without having nominated as his/her personal representative the person appointed by the court.
ANCESTOR (aka ASCENDANT) Any person from whom one is descended; an immediate or more remote parent, eg, a grandparent. An individual related to an intestate in an ascending lineal line. Contrast: DESCENDANT.
The current $345,800 applicable credit amount allows assets valued at up to $1,000,000 to pass estate or gift tax free.
The applicable credit amount is the new name for what used to be called the "unified credit," adopted upon the unification of the estate and gift tax by the Tax Reform Act of 1976. The Economic Growth and Tax Relief Reconciliation Act of 2001, however, changed the estate and gift tax laws, among many other ways, by "freezing" the unified credit for gift tax purposes at its amount applicable for 2002 and 2003, namely, $345,800, while allowing the unified credit for estate tax purposes to continue to increase in time. As a result, the unified credit beginning in 2004 will no longer be "unified," and the IRS changed the name from the "unified credit" to the "applicable credit amount."
APPLICABLE EXCLUSION AMOUNT (aka ESTATE TAX EXEMPTION AMOUNT) The aggregate value of assets, currently $1,000,000, that may pass estate or gift tax free --- aggregated over one's life and at one's death, regardless of the number of total transfers or the number of donees. As a result of the "un-unification" of the unified credit beginning in 2004, the applicable exclusion amount for estate tax purposes will increase over time, the next time being in 2004, to $1,500,000, while the applicable exclusion amount for gift tax purposes will remain at its 2003 amount, $1,000,000.
APPOINT What a court does to affirm a person's nominee as his/her fiduciary and to authorize that person to act as a fiduciary. Compare: NOMINATE.
Some states, eg, Washington, do not require that the "witnesses" or, more correctly, the "attestors," witness the testator's actual signing --- only that they state that they have personal knowledge that the testator was the person who signed the will.
Basis of property depends upon how it is obtained:
1. If by purchase, basis is the cost of purchase plus other amounts paid in its acquisition, such as freight, installation, and testing costs; excise, real estate, and sales taxes; accounting, legal, recording, and title fees; commissions; etc.
2. If in return for services or in a taxable exchange, basis is the fair market value.
3. If in a non-taxable exchange, such as a like-kind exchange, basis is equal to the basis of the property given up in the exchange (ie, its "carry-over basis" --- in other words, the basis of the property given up "carries over" and becomes the basis of the property received in the exchange).
1.An insurance contract under which the surety agrees to pay, up to the amount of the face value of the policy, for financial loss caused to the policy holder by specified acts or defaults of a third party; or
2. An interest-bearing security evidencing a long-term debt, issued by a government or corporation, sometimes secured by a lien on property.
BUY-SELL AGREEMENT An agreement between the owners of a business that provides that the shares owned by any one of them who dies or withdraws from the business shall be sold to, and will be purchased by, the surviving or remaining co-owners or by the entity itself at a value or formula previously agreed upon by the parties and specified in the agreement. Buy-sell agreements are also common between owners and key employees.
CO-ADMINISTRATORS Two or more administrators jointly appointed by a court.
CODE/NO CODE An order entered into a patient's medical record specifying whether or not to initiate cardiopulmonary resuscitation ("CPR") if the patient is observed to have his/her heart stopped beating.
CODICIL A will that modifies or partially revokes an existing or earlier will.
COLLATERAL RELATIVES Those relatives not in a direct line of succession, eg, brothers, sisters, aunts, uncles, cousins, etc. Relatives who trace their relationship to an intestate through a common ancestor but who are not in his/her lineal line of ascent or descent.
COMMON DISASTER An incident that results in the death within a short period of time of two or more individuals (usually husband and wife).
COMMON DISASTER CLAUSE (aka SIMULTANEOUS DEATH CLAUSE) A will clause that specifies the order of death of two or more individuals who die within a stated short period of time, whether or not in a common disaster. For Washington, see RCW 11.05.010 regarding simultaneous death.
2. The system of law originated and developed in England and based on prior court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than codified written law. Contrast: CIVIL LAW.
COMMUNITY PROPERTY AGREEMENT An agreement between spouses that specifies their community property and provides for its disposition upon the death of the first of them to die, generally but not necessarily that all such property will pass to the survivor of them. A community property agreement is a will substitute, and community property that is the subject of a community property agreement is a nonprobate asset and passes "outside of probate."
COMMUNITY PROPERTY STATE One of nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) in which all property acquired during marriage (except by gift or inheritance) by either or both of the spouses is considered to be owned equally by them, and with each having the right to transfer his/her one-half share in that property (the "community") freely at death. Alaska might also be considered as a community property state, because spouses there may elect to treat their property as community property. Contrast: COMMON LAW STATE.
COMPETENT Legally qualified to execute a document having legal significance.
A conservator only if he/she is appointed to protect the financial and property interests of a ward regardless of the ward's age (in other words, to effectively be a conservator of the estate of the ward), and
A guardian only if he/she is appointed to protect the personal and health interests of a ward regardless of the ward's age (in other words, to effectively be a guardian of the person of the ward).
CO-TRUSTEE A joint trustee. It is often useful to have more than one trustee, so that some duties such as investment of estate assets can be handled by one and other duties, such as determination of the amount of discretionary distributions, may be made by the other.
CY PRES DOCTRINE A historic equitable doctrine that provides that upon the failure of a charitable gift (eg, a gift to a non-existent charity, such as the "Salvation Navy" or the "Untied Way"), the court may substitute an appropriate charity or charitable purpose that most closely approximates the testator's intention.
DEAD PERSON STATUTE A historic rule of evidence, still valid in many states, that prohibits any interested person from testifying concerning conversations or transactions with a decedent if the testimony could affect his or her interest. The rule is founded on the principle that it is against public policy to allow an interested witness to testify as to such matters when such testimony, if untrue, cannot be contradicted.
DESCENDANT (aka, collectively, ISSUE) A person descended from another; an immediate or more remote offspring, eg, a child or grandchild. An individual related to an intestate in a descending lineal line. Contrast: ANCESTOR.
DISCLAIMER (aka RENUNCIATION) The renunciation of a gift of either property, an interest in property, or a right by the donee of the gift before or upon (but not after) its transfer to the donee. Gifts that have been accepted cannot be disclaimed or renounced, a critical consideration for estate or gift tax purposes, as the disclaimer of a gift is not considered a taxable event, while the acceptance of a gift and its return to its donor or its transfer to a third party would be considered to be two successive taxable events.
DISINHERITANCE CLAUSE A will clause providing that the testator specifically intends not to provide for a present or future spouse or a present or after-born child who would otherwise be an heir at his/her death.
DURABLE POWER OF ATTORNEY FOR ASSETS (aka FINANCIAL DURABLE POWER OF ATTORNEY) A durable power of attorney that grants to the agent decision-making powers related to the principal's financial, property, and estate planning matters.
ESTATE ADMINISTRATION The collection and management of an individual's property, the payment of his/her debts, the determination and settlement of any taxes due, and the distribution of his/her assets following his/her death.
ESTATE FREEZE A transaction in which a senior family member transfers property with substantial appreciation potential to younger family members at insignificant tax cost and retains an interest in the property, generally with substantial control power but with little potential for appreciation.
FAIR MARKET VALUE The price at which a willing buyer would buy, and a willing seller would sell, an item or a collection of property, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.
FAMILY PARTNERSHIP A partnership in which family members act as the partners, generally splitting partnership income among them and allocating some business income to lower income tax brackets.
"FLOWER" BONDS Certain U.S. bonds that may be redeemed at face value in payment of estate tax. They are known as "flower" bonds, as they are usually available for purchase on the secondary market at a substantial discount, and their value can "flower" appreciably if they are used to pay estate tax.
FUTURE INTEREST An interest in property that will come into being at some future point in time, eg, at some specified date or upon the occurrence or non-occurrence of some event, such as upon the death of someone now living.
GIFT SPLITTING The ability of one married person to use his/her spouse's gift tax annual exclusion amount in order to effectively double the amount of a tax-free gift that may be made to a donee in any particular calendar year. Gift splitting is especially useful if one spouse has substantial assets, and the other spouse has few, so that the spouse having greater capability of making gifts is able to use the gift tax annual exclusion amount of the other spouse in order to make twice the amount of tax-free gifts that he/she would otherwise be able to make.
GIFT TAX ANNUAL EXCLUSION AMOUNT The maximum amount of a gift (of a present interest) that can be made to any donee annually without incurring any gift tax liability, currently, $11,000. There is no limit to the number of such gifts that can be made to different donees, and spouses may combine their gifts to a single donee. Consequently in one calendar year, a married couple who has two adult children, each of whom is married and has two children of their own, could give $22,000 to each child, spouse, and grandchild, for a total of 8 X $22,000 = $176,000 of annual tax-free gifts.
In addition, any payment of any amount on behalf of any donee for school tuition or medical expenses is completely exempt from gift tax as long as the payment is made directly to the school, doctor, hospital, medical facility, etc. and not to the donee.
Lastly, if a donor desires to take advantage of the gift tax annual exclusion amount but is reluctant to make an outright gift to a donee, then other alternates are available, such as a gift to a crummey trust (named for the taxpayer whose tax case validated its use). See CRUMMEY TRUST.
GUARDIAN A personappointed by a court upon its finding of disability of another (the "ward") and who is granted the legal authority and who assumes the legal responsibility to care for the ward. If the disability is personal, ie, it goes to the ward's inability to provide for his/her food, shelter, and health care, the appointment is of a guardian of the person. If the disability is financial, ie, it goes to the ward's inability to provide for the management of his/her property or to resist fraud or undue influence in such management, the appointment is of a guardian of the estate. If the disability goes to both, the appointment is of a guardian of the person and estate.
In some states, eg, California, a guardian is the title of the person appointed only for a minor, in which case the person appointed to care for a disabled person who has attained the age of majority is known as a conservator. Also, in some states, eg, California, a guardian or conservator may be appointed who has only limited duties that the court specifically finds are needed for the care of the ward (eg, housing or health care or management of a specific asset), in which case the appointee is known as a limited guardian or conservator.
HEALTH CARE DIRECTIVE A document that contains a directive relating to the health care of the individual making the directive and that is to take effect when that individual is no longer able to make decisions about his/her own health care. It generally often:
Specifies medical treatment the individual either desires to receive or refuses to receive, and
Includes the appointment of another individual to make such decisions for the individual making the directive when he/she is unable to make such decisions for him/herself.
'HEMS" The four express ascertainable standards --- Health, Education, Maintenance, and Support --- provided by the Internal Revenue Service. If a holder of a power of appointment may only exercise the power subject to any one or more of these four specific standards and no others (eg, specifically not any of "comfort" or "welfare" or "happiness"), then the power will be considered to be a limited power of appointment, and the assets subject to the power will not being included in the holder's estate for estate tax purposes.
The use of specific words that may or may not define an ascertainable standard has resulted in much litigation. For example, the inclusion of one word, "comfort," in a trust cost one estate over $700,000 in unnecessary estate tax. Estate of Norman H. Vissering, 96 T.C. 749 (1991). The trust could even have said "comfortable" (as in "comfortable support" --- just not "comfort" alone) and that would have been OK.
HOLOGRAPHIC WILL A will that is written entirely in the testator’s own handwriting, and that is not witnessed.
INCOME IN RESPECT OF A DECEDENT (aka IRD) Income a decedent earned but not paid before death. IRD is included in the gross income of its survivor recipient.
INCORPORATION BY REFERENCE Making one document become part of another document by referring to the former in the latter in such a manner that it is apparent that the former document becomes part of the latter document as if it were fully set forth in it. See RCW 11.12.255 for the requirements for incorporation by reference in Washington.
JOINT WILL A single will made by two of more testators covering the passage of property of each testator at his/her respective death, resulting in the same will being offered for probate in more than one proceeding.
JURISDICTION The power, right, or authority of a Court to interpret, apply, and declare the law, eg, by rendering a decision.
Regarding one's tangiblepersonal property, many states have statutes providing for the disposition at death of some types or all of an individual's tangiblepersonal property (generally not including property used in a trade or business) by a writing, specifying the item and its intended beneficiary and signed and dated by its maker, that does not have to be executed with the formality required of a will. In some states (eg, Washington, see RCW 11.12.260), these informal writings are binding as regards the disposition of the specified property so long as it is not specifically given in one's will and the will refers to the writing. In other states, these writings are discretionary with one's personal representative.
LETTERS OF ADMINISTRATION WITH WILL ANNEXED A certificate of authority granted by a probate court stating that the person named has been appointed as administrator of an testatedecedent's estate (but was not nominated as executor in the will) and authorizing that person to administer the estate according to the terms of the will. See: ADMINISTRATOR.
LIEN An interest held by a creditor in property of a debtor as security for a loan. Upon the debtor's default on the loan, the creditor/lien-holder may take, hold, or sell the property as payment.
LIFE ESTATE A present interest in property of a duration equal to a specified individual's lifetime, usually of the individual who holds the present interest; if measured by the lifetime of a different individual, it is called a Life Estate Pur Autre Vie (literally, a life estate "by another's life"). If the interest is in trust, it is called a Life Interest. Contrast: REMAINDER.
Transferable-on-death securities and securities accounts, which pass to the designated transferable-on-death beneficiaries;
Property whose title Decedent has transferred but whose possession Decedent has retained until his/her death (ie, retained life estates), which passes to the remainder beneficiaries according to the Deed or other conveyance document;
Property Decedent has transferred to a revocableliving trust for his/her benefit, which continue to be held by the trust, now for the benefit of the successor beneficiaries;
Property subject to a community property agreement, which passes to Decedent's surviving spouse;
Life insurance policies on Decedent's life, whose proceeds pass to the designated beneficiaries;
Property held in Decedent's individual retirement accounts, which passes to the designated beneficiaries;
Property in Decedent's employee benefit plans, which passes to the designated beneficiaries;
NOTARY (aka NOTARY PUBLIC) An individual authorized by a state to administer oaths and attest to the authenticity of signatures.
NUNCUPATIVE WILL An unwritten will that is spoken by the testator during his/her last illness to at least two witnesses. Washington law recognizes nuncupative wills under very limited circumstances. RCW 11.12.025
OWNERSHIP Not only the right to use and possess property (a "tenancy") but also to exclude others from it and to transfer it, during life or at death, to another (effectively, the exclusive right to use and possess it for eternity).
PAYABLE-ON-DEATH (aka TRANSFER-ON-DEATH or as a "TOTTEN" TRUST) A form of ownership provided by some state statutes for holding those assets specified by the statute, generally, bank accounts, certificates of deposit, savings bonds, and securities. Upon the death of an owner of property held as payable-on-death, the named "in trust for " beneficiary or "payee" automatically succeeds to the property.
PECUNIARY GIFT A gift of money, by will or otherwise.
PER STIRPES DISTRIBUTION Literally, "by stirrups," relating to the up-side-down-"Y"-shaped appearance of a genealogical chart. See BY RIGHT OF REPRESENTATION.
PICK-UP TAX The estate tax, imposed by some states, equal to the maximum allowable federal estatetax credit for estate taxes paid to a state. The pick-up tax is designed by a state's legislature to divert to decedent's resident state, at no effective cost to decedent, tax that would otherwise have been paid to the federal government.
POSTHUMOUS HEIR An heir conceived before, but born after, Decedent's death.
POST-NUPTIAL AGREEMENT An agreement between a married couple in which agreement they determine the property rights and interests each shall have upon termination of their marriage, by dissolution or death. Compare: PRE-NUPTIAL AGREEMENT.
PRECATORY LANGUAGE Words of intent or desire but having no legal effect, eg, "I would like, I hope, I wish, etc."
PRE-NUPTIAL AGREEMENT (aka ANTE-NUPTIAL AGREEMENT) An agreement between a couple in expectation, and possibly in consideration, of their marriage to each other, in which agreement they determine the property rights and interests each shall have if they wed. Compare: POST-NUPTIAL AGREEMENT.
PROPERTY Anything which may be the subject of ownership, such that its owner has the exclusive right to possess, to use, to exclude others from it, and to transfer it to another.
PRUDENT-PERSON RULE (originally known as PRUDENT-MAN RULE) The investment standard for a fiduciary, based on the 1830 Massachusetts case Harvard College vs. Amory:
"In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of another, a fiduciary shall exercise the judgment and care, under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital."
The Prudent Person Rule emphasizes caution, conservation, but most of all preservation of capital.
The surviving spouse's right to income for life can be either legal or equitable. An example of a legal right to income for life would be a right of the surviving spouse to live in the family home rent free for the rest of his/her life. An example of an equitable right to income for life would be the right to all income from a trust whose assets consisted of publicly traded securities.
REVIVAL The validation of a previously revoked will upon the revocation of the subsequent will as provided by statute in some states. Some state statutes provide that if a testator has executed two wills in succession such that the later will expressly revokes the first will, then if the testator subsequently revokes the second will by itself (ie, not by making a further will), the first will is "revived" and becomes valid once more. See RCW 11.12.080 regarding revival in Washington.
SECTION 6166 INSTALLMENT PAYMENTS Internal Revenue Code § 6166 provides that if decedent's gross estate includes an interest in a closely held business (such as a sole proprietorship, partnership, closely held corporation, family owned farm, etc.), decedent's personal representative may be able to elect to pay the pro-rata portion of the estate tax attributable to the business (the "attributable estate tax") in installments, such that:
Payment of the attributable estate tax itself may be deferred for up to 5 years, and
Payment of the interest on the attributable estate tax may be deferred for up to 10 years thereafter (ie, a maximum deferral period of 15 years).
Its result, namely, that he/she is directing the distribution of his/her assets on death.
TESTAMENTARY INTENT The intention of a testator, at the time of signing the relevant document,to make a will. So, for example, decedent's letter to his/her lawyer saying, "Please draft a will for me that leaves all of my estate to my spouse." would not amount to a will for lack of testamentary intent.
1. As a noun: One who, being physically present, personally perceives a relevant object or action that has legal significance and is able to testify in court as to his/her perception; or
2. As a verb: The act of such perceiving.
See RCW 11.12.020 for the witnessing requirements for wills in Washington.
WRONGFUL DEATH A death caused by the willful or negligent act of another.
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