Chapter A. Establishing The Will
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A.l. Purposes and Processes
Al.a. Reasons for Probate and Administration
A.l.a.(1) Probate
Probate of a will is for the purpose that its name implies: proof of the fact that the document in question is the valid last will of the decedent.1 It is a means by which the rights of those taking under a will can be formally ascertained and protected.2 A will, it is said, is not effective "for any purpose until it has been formally established by probate."3 Until such time it cannot, for example, be admitted into evidence in a proceeding regarding title to property devised or any collateral matter.4 Probate "declares the existence" and "furnishes official evidence" of the facts relating to the will. Probate is thus "at once necessary to the admissibility of a will in evidence and to establish its competency as evidence and its validity and effect as against all the world."5
Probate is not required to vest title to realty in a devisee, because that occurs "instantly" upon the death of the testator.6 (Title also vests instantly in the heirs on the death of an intestate.)7 No person, however, is "deemed a devisee until the will has been probated."8 What this means is that, although the title to realty in fact vests instantly, proof of that fact is the function of probate. Until probate,
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the devisee may be, but has not been officially "adjudged" to be, the vested owner of the property.9 In this sense, the probate "relates back" to the date of death, in that it establishes that which in fact occurred at the earlier date.10
Probate can be had at any time after the death of the testator, and it is not affected by the time restraints on administration.11 A person having custody or control of a will, however, must deliver it to the court or the named executor within 30 days of receiving knowledge of the testator's death; and an executor must deliver it to the court within 40 days of receipt of such knowledge.12
A will may now be filed under seal with the court while the testator is still alive.13 The testator may withdraw it at any time, and others with good cause (such as an attorney in fact or guardian of the testator) may do so with a court order.14 Upon presentation of proof that the testator has died, the file is unsealed.15 This new provision does not alter the duty of one with custody or control of the will to file it upon learning of the testator's death, as set out above.
A.l.a.(2) Administration Distinguished
Probate of a will should be distinguished from administration of the testator's (or an intestate's) estate. The purpose of administration is primarily the protection of creditors, or perhaps more accurately the protection of creditors, debtors, and beneficiaries.16 Its main objective is the collection of the estate's assets and the payment
It has been noted that if the decree of distribution erroneously (but effectively) gives title to the wrong person, technically it does not simply declare an existing title, but it creates a new one; but the practical effect is the same as if the declared owner had in fact been the true heir and obtained title under the will or intestacy statute. See In re Graley's Estate, 183 Wash. 268, 273-74, 48 P.2d 634 (1935).
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of the decedent's debts.17 Therefore, if all of the decedent's debts have been paid or otherwise barred, there is no need for, or right to, administration.18 Administration, or a court decree, is not a prerequisite to a valid distribution.19 Administration may have some proper subsidiary purposes, such as resolving conflicting claims to property.20 When such administration is sought only for some improper purpose, however, it will be denied.21
As indicated above, title to real property vests instantly in the devisee, subject to its formal establishment by probate.22 Although this title is good as against the world at large, the right to possession of the property is in the personal representative until administration of the estate has been completed.23 "Only after an estate has been closed can the heirs ... become entitled to treat (the property) as their own."24 Technically, personal property descends directly to the personal representative, and thus there is no right to it until its distribution following administration.25 But if all debts have been paid and the property need only be distributed, administration would be a "useless ceremony" and will be dispensed with.26
By statute, a decedent's estate is not liable for his or her debts unless a claim is presented within 24 months of the decedent's death.27 Administration in a foreign state within this period will not suffice to avoid the barring of claims.28 On the other hand, foreign administration even within the 24-month period cannot affect the
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claims of creditors with respect to Washington real property, as the foreign court has no jurisdiction over that property.29
A.l.a.(3) Adjudication of Testacy
Under RCW 11.20.020, formal administration and appointment of a personal representative can be dispensed with, the court entering an adjudication of testacy establishing the will rather than a probate decree. Following proper notice to interested persons,30 and a four-month opportunity to contest or offer a later will,31 the adjudication order is deemed "the equivalent of the entry of a final decree of distribution."32 Although a personal representative can still be appointed "for good cause" to administer the estate if the petition for letters testamentary is filed after the four-month limitations period, the adjudication remains final.33 There are corresponding provisions relating to an adjudication of intestacy.
A.l.b. Jurisdiction of the Probate Court
A.l.b.(l) TEDRA
The Trust and Estate Dispute Resolution Act of 1999 (TEDRA)34 changed considerably the landscape of probate and related proceedings. The stated purpose of the statute is to set forth and consolidate in one chapter provisions for the resolution of "disputes and other matters" concerning trusts and estates, including both nonjudicial ("mediation, arbitration, and agreement") and judicial methods of resolution.35
TEDRA gives "full and ample power" to administer and settle "all matters concerning the estates and assets of ... deceased persons,"
Note that under an amendment to the statute in 2013, a judicial proceeding under TEDRA must be brought as a new action, and not, as provided by the former statute, as "an action incidental to an existing judicial proceeding relating to the same trust or estate or nonprobate asset." RCW 11.96A.090(2).
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including those involving nonprobate assets, and all trust matters.36 It even gives the court, should the statute be otherwise "inapplicable, insufficient, or doubtful" with regard to any of the above, "full power and authority" to proceed "in any manner and way that to the court seems right and proper" so that the matters may be "expeditiously administered and settled by the court."37 This is indeed a broad delegation of power.38
The definition of "matter" over which this broad power is to be exercised is similarly sweeping, including, inter alia, determining those interested in an estate, trust, or asset; giving direction to a fiduciary; determining matters of administration such as will construction, trust situs, accountings, and fees; grants of necessary or desirable power to a fiduciary; changes in instruments to conform to Internal Revenue Service requirements; and determining or administering matters related to nonprobate assets, including those subject to joint tenancy, community property agreements, and payable-on-death (POD) or transfer-on-death (TOD) designations.39 It is, however, expressly stated that TEDRA does not supersede but only supplements the procedures in such other statutes as Chapters 11.20 (probate), 11.24 (will contests), and 11.28 (letters of administration) RCW.40
Needless to say, although much of the pre-TEDRA case law is not expressly superseded by the new statute and is still applicable, one must consider respecting most cases (including those cited here) whether some provision of TEDRA arguably supersedes it by implication. In many instances TEDRA merely confirms or reaffirms long-established procedural law.41
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A.l.b.(2) Probate Jurisdiction
RCW 11.96A.040 gives the superior court original jurisdiction over probate matters whether a testator dies within or outside the state, as a resident or nonresident of the state.42 The statute further provides that the superior courts have power to probate wills, appoint personal representatives, administer and settle estates, deal with nonprobate assets, administer and settle all matters related to trusts and powers of attorney, "and do all things proper or incident to the exercise of such jurisdiction."
As these statutes make clear, Washington has no separate "probate court" as such. Rather, the superior court is vested with jurisdiction over probate matters, and when it sits as a court of probate it retains all of its powers as a court of general jurisdiction as well.43 Long before the passage of TEDRA, the superior court in its probate capacity had the power to determine "all controversies relative to the properties or interest of the estate or of the heirs or creditors, whether those controversies relate to civil, equity, or strictly probate cases."44
In early cases Washington courts held that the probate court had no power to try the question of title to property between the estate and a third party claiming adversely to it.45 In later cases they determined the court had such power,46 however, and the question is
With respect to the several factors determining venue and a request for a change of venue, see RCW 11.96A.050.
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one of personal rather than subject matter jurisdiction—if the court has personal jurisdiction, it can settle...
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