Probate is the process whereby a court-appointed legal representative administers the estate of a deceased person. The process is commenced by the filing of a petition commencing a legal proceeding before superior court (the probate case). The legal representative is the personal representative if the decedent left a valid last will and testament, or the administrator) if the decedent left no such will (either may be referred to as the executor).

The estate consists of both assets and liabilities of the decedent at death (debts and claims against the estate). Therefore, administration of the estate by the executor includes the collection, safeguarding, and distribution of decedent’s probate assets after payment of valid claims against the estate, taxes and expenses of administration.

In Washington state, an executor may serve as such with “nonintervention powers” if certain requirements are met, such as by the decedent creating a valid will that specifies the personal representative may serve with nonintervention powers. Nonintervention powers enable the executor to complete many of his/her legal duties without the need for court approval (i.e., intervention of the court). Nonintervention powers allow probate proceedings to be administered more efficiently and cost-effectively.

Probate assets

A probate asset is one that passes pursuant to the terms of decedent’s last will and testament. Generally, a probate asset is one such that it must be retitled through a probate proceeding in order to be administered properly (but read here for small estate affidavit procedure in lieu of probate).

Nonprobate assets

Nonprobate assets are “those rights and interests of a person having beneficial ownership of an asset that pass on the person's death under a written instrument or arrangement other than the person's will.” RCW 11.02.005(10). In other words, in Washington, nonprobate assets pass outside a person’s will.

Statutory examples of nonprobate assets per RCW 11.02.005(10) include:

Property passing via joint tenancy with right of survivorship;

Joint bank account with right of survivorship

Transfer on death deed

Payable on death account

Transfer on death investment account

Trust property if the trust becomes irrevocable on the person’s death

Community property agreement

IRA

Bond

The definition of nonprobate assets expressly removes certain assets that otherwise would qualify as nonprobate assets from the definition of nonprobate assts. RCW 11.02.005(10) adds the following exception to its definition of nonprobate assets: A payable-on-death provision of a life insurance policy, annuity, or other similar contract, or of an employee benefit plan..."

As such, these assets are neither probate nor nonprobate assets under Washington law. While confusing, the rationale for so doing is simple: protect these assets from creditor and other claims.

Contact our office if you have questions about probate or estate planning. The Law Offices of Christopher R. Chicoine, PLLC can be reached at 425-243-4158 or crc@chrischicoinelaw.com

Dislcaimer This is for information purposes only; no attorney/client relationship is created. This isn't legal advice. I make no warranty of any kind regarding this information. Contact an attorney.