Filing & Publishing a Nonprobate Notice to Creditors
- Filing a Nonprobate Notice to Creditors
- Telephoning the Probate Clerk
- Going to the Superior Court Clerk’s Office
- Publishing a Nonprobate Notice to Creditors
- Giving Notice to Washington Department of Social & Health Services (“WDSHS”)
FILING A NONPROBATE NOTICE TO CREDITORS
Complete and sign a: Nonprobate Notice to Creditors
TELEPHONING THE PROBATE CLERK
Telephone the County Clerk in the county in which Decedent resided at death (Telephone Numbers) and ask to speak to the probate clerk: Determine if there are any requirements specific to that county or other requirements that it would be helpful for you to know before going to Court. For example: Requirement Specific to King County. Complete any of the foregoing requirements that may be applicable to you and set aside any resulting form that you have completed until you go to Court.
GOING TO THE SUPERIOR COURT CLERK’S OFFICE
- Ask one of the clerks to verify that:
- No Personal Representative has been appointed for Decedent, and
- No one else has filed a Declaration & Oath of Notice Agent for Decedent’s nonprobate estate.
- File the originals of the following documents:
- In King County: King County Case Assignment Designation and Case Information Cover Sheet.
- Declaration & Oath of Notice Agent
- If you were appointed as Notice Agent: Agreement Regarding Nonprobate Estate
- If you are a non-resident: Designation of Resident Agent of Notice Agent.
- Nonprobate Notice to Creditors.
- Pay the filing fee & get a receipt for it. Filing Fees & Methods of Payment
- Make sure to bring, and stamp as conformed, a copy of every document that you file.
The Issue: Putting the world on notice that:
- Decedent has died;
- You are serving as Notice Agent for Decedent’s nonprobate estate; and
- Any creditor of Decedent has four months to present his/her/its claim against the estate or be barred.
PUBLISHING A NONPROBATE NOTICE TO CREDITORS
RCW 11.42.20(2) requires you to publish a Nonprobate Notice to Creditors. To do so:
- You have already completed and filed the Nonprobate Notice to Creditors form. Now, publish a conformed copy of it according to statute (RCW 11.42.020(2)), namely, once each week for three successive weeks in a legal newspaper in the county in which Decedent resided at death.Timing: Promptly after your appointment as Notice Agent.
- Send the copy to a newspaper for publication: See Legal Newspapers & Costs of Publication for possible newspapers and costs of publication.
- Promptly following the third publication, file an Affidavit of Publication: To obtain the benefits of publishing a Nonprobate Notice to Creditors, RCW 11.42.020 requires a Notice Agent to file an Affidavit of Publication, showing that the Nonprobate Notice to Creditors has been published according to law. Following its third publication, most newspapers, after getting paid, and at no further charge, will prepare and either:
- File the required Affidavit of Publication with the pertinent Court and send you a copy of it, or
- Send you the original of their Affidavit of Publication for you to file.
Caution: When you send your Nonprobate Notice to Creditors to the newspaper for publication, make sure to obtain that newspaper’s policy regarding the disposition of its Affidavit of Publication (ie, will the newspaper mail the Affidavit to you or file it with the Court itself),and after publication, make sure that the original of the Affidavit of Publication is filed with the Court, either by the newspaper or by you.
The Issue: Putting the WDSHS on notice that Decedent has died, so that the Department may file and serve a Creditor’s Claim for recovery of any medical costs and other benefits advanced to Decedent.
GIVING NOTICE TO WASHINGTON DEPARTMENT OF SOCIAL & HEALTH SERVICES (“WDSHS”)
RCW 11.42.020(2)(d) requires you to give written notice to the WDSHS. To do so:
- Complete and sign a: Nonprobate Creditor’s Notice to WDSHS & Declaration of Mailing form.
- Add Decedent’s Social Security Number to the form,
- Mail a copy of it to the WDSHS at the address shown on the form, and
- File its original with the Court (with copy for conformation and return to you).
Caution: The Nonprobate Notice to Creditors form is the generic form. The Nonprobate Creditor’s Notice to WDSHS & Declaration of Mailing form, the one referenced immediately above, is a Nonprobate Notice to Creditors form that has been customized specifically to be sent to the WDSHS and filed with the Court along with its self-contained Declaration of Mailing. Make sure that you select the correct form for your intended purpose.
The (end run) Affidavit Lack of Probate (or “No Probate”) is a factual confirmation which supports/avers that the rightful heirs are entitled to their interest in the property after the passing of the Decedent. It is recognized in many Washington Counties as a way to clear the Decedent’s name off title as an alternative to a probate. It may work for the estate of any Washington State property owner, whether the Decedent was a U.S. Citizen, U.S. Tax Resident, or Canadian Non-U.S. Resident.
The “Affidavit Lack of Probate” name is deceiving in that it only refers to the absence of a probate in the County where the real estate is located in Washington. When, in fact, the Decedent’s estate may have already been probated in another jurisdiction where he or she was a resident. A common scenario involves a British Columbia resident, for example, who owns a vacation property in Whatcom County, Washington. Upon the death of the property owner it will be necessary to clear title to the Washington property regardless of any probate in British Columbia where the Court does not have the authority to do so. Whether or not the property owner had a Will, the Affidavit of Lack of Probate when recorded in Whatcom County should avoid a second (or “ancillary”) probate.
At the same time, the Affidavit of Lack of Probate can also be very effective when a Washington resident owns real estate in Washington and there may be no need to file a probate. This scenario may involve a smaller estate, or even a larger estate, with Washington property, when there are limited heirs, and no creditors. When the Affidavit of Lack of Probate is recorded it should avoid a probate in the first place.
And in limited cases, the Affidavit of Lack of Probate is often a recognized way to avoid probate when the Decedent did not have a Trust, Joint Tenancy with Rights of Survivorship, Community Property Agreement or some other non-probate alternative in place.
Once the Affidavit is recorded with the County Auditor, the net effect is to vest title to the beneficiary(ies) named in the Decedent’s Will, or to the “rightful” or legal heir(s) if the Decedent did not have a Will. In order to determine the “rightful” heir(s) look to the Washington Intestacy Statute, RCW 11.04.015, which spells out the order of distribution.
Before recording the Affidavit of Lack of Probate it is important to comply with any U.S. Estate Tax obligations. A U.S. Estate Tax Return may have to be filed. And/or it may be necessary to obtain a transfer clearance certificate from the IRS.
It is recommended that the beneficiary(ies) or heir(s) consider buying title insurance if not already in place to insure their vested interest in conjunction with recording the Affidavit of Lack of Probate.
1. Avoids Probate.
2. Should vest title in Washington State Real Estate to the beneficiary(ies) named in the Decedent’s Will, or the “rightful” legal heir(s) if the Decedent died without a Will.
3. Cost effective and less expensive than an ancillary probate.
4. Exempt from Washington State Real Estate Excise Tax.
5. Title Companies may insure the interest of the beneficiary(ies) or heir(s) when the Affidavit is recorded.
6. The beneficiary gets a full-stepped up basis for U.S. tax purposes, meaning that he or she assumes the fair market value of the real estate at the date of death in the event of a future sale or transfer.
1. The Affidavit is not a deed or conveyance which is the legally recognized way to transfer title.
2. The Affidavit is not a judicial determination but merely a factual confirmation that the beneficiary(ies) in the Decedent’s Will or the heirs in an Intestacy should be entitled to their interest in the property.
3. The Affidavit may not satisfy the future warranty obligations of a Grantor in subsequent conveyances by Statutory Warranty Deed.
4. When there is a need to file a probate to: (a) access a safe deposit box; (b) deal with creditors and publish Notice of Creditors to impose a shorter time for unknown creditors to respond; (c) litigate on behalf of the Estate; (d) find heirs whom are not easily identifiable; (e) or for other compelling reasons.
5. Some Washington Counties do not recognize the Affidavit as a way to transfer title, such as, in King County.
The above list is not exhaustive. There are other pros and cons.
Other non-probate methods should also be considered, including a Trust, Joint Tenancy with Rights of Survivorship, and Tenancy in Common. I recommend you also read the following blog articles about the Transfer on Death Deed (“TODD”) Community Property Agreement, because these non-probate methods may be more advantageous.
The above is not intended to be legal advice but is general information provided as a courtesy.
Representative Washington Legal Newspapers & Costs of Publishing a Nonprobate Notice to Creditors
|Benton||Tri-City Herald||509 582-1464||$15.28/in + $14.11/in||$250|
|Chelan||Wenatchee World||509 661-6370||$15.66/in||$300|
|Clallam||Peninsula Daily News||360 417-3556||$9.00/in||$150-200|
|Clark||Battleground Reflector||360 687-5151||$70 Flat|
|Vancouver Columbian||360 993-5050||$1.35/L||$200-250|
|Cowlitz||Longview Daily News||360 577-2568||$1.01/L + $0.92/L||$150-200|
|Franklin||Tri-City Herald||See Benton|
|Grays Harbor||Aberdeen Daily World||360 532-4000||$11/in|
|Montesano Vidette||360 249-3311||$140 Flat|
|King||Daily Journal of Commerce||206 622-8272||$102 Flat|
|Pacific Publishing Co. (4 papers)||206 461-1302||$105 Flat|
|Kitsap||Bainbridge Review||206 842-6613||$13.50/in||$300|
|Bremerton Sun||360 415-2687||$10.12/in||$250|
|Lewis||Centralia Chronicle||360 736-3311||$1/L||$175-250|
|East County Journal||360 496-5993||$6.50/in||$100|
|Pierce||Tacoma Daily Index||253 627-4853||$108 Flat|
|Snohomish||Everett Herald||425 339-3100||$12.60/in = $0.90/L||$175|
|Spokane||Cheney Free Press||509 235-6184||$115 Flat|
|Deer Park Tribune||509 276-5043||$7.50/in|
|Spokane Spokesman Review||509 459-5121||$2.81/L||$425|
|Thurston||Olympia Olympian||360 704-6884||$1.83/L|
|Nisqually Valley News||360 458-2681||$120 Flat|
|Tenino Independent||360 264-2500||$6.50/in|
|Walla Walla||Waitsburg Times||509 337-6631||$5.35/in||$80-120|
|Walla Walla Union-Bulletin||509 525-3300||$7.30/in + $6.37/in||$100-150|
|Whatcom||Bellingham Herald||360 676-2600||$1.71/L + $1.52/L||$300|
|Yakima||Yakima Herald||509 577-7740||$17.53/in + $14.03/in|
1. “Flat” means the total charge for publishing any Notice to Creditors 3 times.
2. “/in” means the charge for one publication per inch of copy. The Everett Herald said that with the printing type that they use, $12.60/in is equivalent to $0.90/L, so these two different ways of quoting charges may be related on the basis of 1 inch = 14 Lines (at least for the style of type used by the Everett Herald).
3. “/L” means the charge for one publication per line of copy.
4. If more than one rate is given, the first rate is the charge for the first publication and the second rate is the charge for each successive publication.
5. “Estimate” means that newspaper’s average charge for publishing a Notice to Creditors 3 times. Many salespersons indicated that a Notice to Creditors was seldom shorter than 5 inches, usually was around 7 inches, and occasionally was over 10 inches (eg, multiple Personal Representatives, each with their own attorney). Consequently, the total charge for publishing a 7 inch Notice to Creditors 3 times at a charge of $10/in would be 7 x 3 x $10 = $210.
6. Many papers charge more for weekend or Sunday publication. The above charges are all for weekday publication.
7. Most newspapers’ charge includes their fee for supplying an Affidavit of Publishing, but some do not (eg, Olympia Olympian: $8.50, Bellingham Herald: $13).
8. The rates shown above were obtained in December, 2002 for publication in January, 2003.
9. Many counties, and most of the more populous counties, have not only a “popular” newspaper but also a “commercial” newspaper that has a lower, often “flat” rate. Publication at the lower rate produces just as “legal” a notice as does publication at a more expensive rate.
10. If the above list omits a newspaper in your county:
- Go to Washington Superior Courts and click on your county.
- From that county’s directory, obtain the phone number of its Superior Court Clerk’s Office.
- Telephone the Clerk and ask for the names of the newspapers where Probate Notices to Creditors are usually published for that county — many of the clerks will provide two or three.
- Use Google to obtain the website for each newspaper.
- From that newspaper’s website, obtain the phone number for its classified department.
- Telephone the newspaper, ask to speak to “Legal ads”, and obtain the rate.
King County Case Assignment Designation
King County Local Rule LR 82(e)(1) requires every initial pleading (eg, a Petition for Letters) filed in the Superior Court to be accompanied by a special form in which the petitioner states whether the case fits within the Seattle or Kent Case Assignment Area. For probate cases, the proper area is whichever of the following two areas where the Decedent resided or, if the Decedent did not reside in King County, where any asset of the estate may be:
- Seattle Case Assignment Area. All of King County north of Interstate 90 and including all of the Interstate 90 right-of-way; all of the cities of Seattle, Mercer Island, Bellevue, Issaquah and North Bend; and all of Vashon and Maury Islands.
- Kent Case Assignment Area. All of King County south of Interstate 90 except those areas included in the Seattle Case Assignment Area.
Complete the Form as follows:
- Case Number: Leave this blank. The Clerk will issue it to you.
- Case Caption: Estate of [Fill in Decedent’s name here], Deceased.
- Area: Check whichever Area is appropriate.
- Signature of Petitioner & Date: Sign and date it.
- On 2nd page, under Probate/Guardianship: Check Estate.
Set this completed form aside for taking with you to file at Court along with your Declaration and Oath of Notice Agent.
Probate Shortcuts in Washington
Save time and money when you wrap up an estate in Washington.
Updated By Valerie Keene, Attorney
Need Professional Help? Talk to a Probate Attorney.
Washington offers two probate shortcuts. These procedures make it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using simplified probate procedures or without any probate court proceedings at all. And that saves time, money, and hassle.
Here are the ways you can skip or speed up probate. (If the affidavit procedure is used, there’s no need to use the simplified probate procedure.)
Claiming Property With a Simple (Small Estate) Affidavit
Washington has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account — gets the affidavit and a copy of the death certificate, it releases the asset.
The out-of-court affidavit procedure is available in Washington if the value of assets subject to probate, not counting the surviving spouse’s or domestic partner’s community property interest, less liens and encumbrances, is $100,000 or less. There is a 40-day waiting period. Wash. Rev. Code § § 11.62.010 and following.
The affidavit must state:
- your name and address
- the reason you are the rightful owner of the property
- the deceased person was a Washington resident at the time of death
- the value of the estate is less than that described above
- all of the deceased person’s funeral and burial expenses and other debts have been paid, and
- a description of the personal property and which portion you are requesting.
You must give written notice to the other inheritors at least 10 days before filing the affidavit. You must also give the department of social and health services a copy of the affidavit and the deceased person’s Social Security number.
Simplified Probate Procedures
Within its regular probate process, Washington offers a simplified version of probate to certain estates. If the estate is eligible, the court may authorize the personal representative to distribute the assets without any supervision from the probate court. To use this process, the personal representative must file a written request with the local probate (superior) court.
The court may grant a request for “settlement without court intervention” if the estate is solvent (has enough assets to pay valid debts and taxes) and:
- if there is a will, the personal representative named in the will makes the request, or
- if there is no will, the surviving spouse or domestic partner makes the request, the estate consists entirely of community property, and the deceased person left no children or grandchildren from another relationship, or
- the personal representative is not a creditor of the deceased person, and the court determines it would be in the best interests of the beneficiaries and creditors.
Wash. Rev. Code Ann. § § 11.68.011 and following.
The personal representative collects the assets of the estate, pays claims, and files an accounting. The personal representative can file an application for a court order to close the estate. This order either:
- states that the personal representative paid all approved claims, determines the people who should receive the property, and distributes the property to these people, or
- approves the personal representative’s accounting and orders the case closed.
The application must state the amount of money the personal representative is requesting for his or her services, for attorney services, and the services of other professionals (like accountants or appraisers). The personal representative must give notice to all inheritors and known creditors before filing this application. Wash. Rev. Code Ann. § § 11.68.100.
If the personal representative doesn’t file an application for a court order, he or she must file a declaration that states:
- the deceased person’s date of death and address
- whether the deceased person had a will (the date of the will and the date of the court order recognizing the will as valid, if there is one)
- the names, addresses, and relationship to the deceased person for each heir of the deceased
- the share of each heir of the deceased, if there is no will
- that the personal representative paid all presented creditor claims
- that the personal representative paid any estate taxes due
- the fees paid to the personal representative, lawyers, appraisers, and accountants
- that the personal representative believes these fees are reasonable and don’t require a court order for payment, and
- that the personal representative completed all responsibilities and the estate is ready to be closed.
Within five days of filing this declaration, the personal representative must mail a copy of the decladration to each heir and beneficiary. The mailing must include specific language that explains the declaration’s purpose and power. Wash. Rev. Code Ann. § § 11.68.110.
For More Information
For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor’s Guide, by Mary Randolph (Nolo) or Estate Planning Basics, by Denis Clifford (Nolo).
Mom just passed away, and the family wants to sell the home. This is a listing with a motivated seller. But who actually owns it?
Of course, the family home (if it isn’t in a trust) will automatically go to the surviving spouse without the need for a probate. But, what about a married person who owned the house as separate property, or Mom who was widowed? Washington law (RCW 11.04.0115) identifies heirs at law who inherit when there is no will, including (in this approximate order) the spouse, children and grandchildren, parents, siblings and children of siblings.
A formal probate allows for the protection and orderly distribution, after payment of debts, of the assets of the deceased to heirs and/or devisees or a sale to a third party by the personal representative. Nonetheless, even though Washington probates are not expensive or time consuming, they often are not done. But how else will the buyer know that all of the title interest is properly conveyed? What if there are valid liens (including estate taxes or state Medicaid reimbursements) against the estate that would otherwise be paid in probate? That is where the “lack of probate” concept comes into play.
Title to property of a decedent immediately vests in either devisees (if there is a probated will) or the heirs (if there is no probated will), even if the identity of those parties are unknown at that time – with or without a will, and with or without a probate.
With or without a will
When someone dies, that person will be either testate (with a will) or intestate (without a will). Both can be probated – but it’s not required, even though RCW 11.20. 010 says a will must be filed with the county superior court.
In order for the title company to identify who these people are, or whether there is an unprobated will (which could give an interest to a non-relative or charity), it uses an affidavit. The affidavit, usually signed by a relative, must identify all these interests – including the estranged prodigal son who’s been incommunicado for years. It says when and where the deceased lived and died, and identifies any unprobated will or foreign probate. Finally, it states whether Mom received Medicaid benefits, and identifies the value of the estate for estates tax purposes. Based on this information, and deeds from all potential claimants and releases of liens, the title company can usually assume the risk of future claims and insure clear title in the buyer.
Keep in mind that this can be used when the will is probated in another state. Since foreign courts don’t have jurisdiction in Washington, an ancillary court action can be opened in Washington Superior Court that essentially blesses what the foreign court orders. Again, however, that expense and bother can be avoided with the lack of probate approach.
The Realtor® can help the family gather this information and get it to the title company so that the closing can take place and everyone is happy.