Heir Rights (WA)
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As an heir, you likely have questions about the inheritance process in WA, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under WA Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, WA estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- WA Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see WA Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See WA Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
WA Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Washington, small estates can completely bypass probate via small estate affidavit. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate, and regardless of size, straightforward estates can greatly simplify probate via settlement without court Intervention.
Small Estate Affidavit
If a WA estate qualifies as "small", you can bypass probate entirely and instead use a notarized affidavit to collect property according to RCW § 11.62.010.
Requirements
You can use the small estate affidavit process if:
- The estate's qualified gross value is <$100,000 (see below)
- At least 40 days have passed since the death
- All debts have been paid or provided for
- No has been appointed executor for the estate, and there are no pending applications
- You have given all estate successors (see below) at least 10 days' notice of your intent to claim the property
- If there are other people for whom you are jointly claiming the asset, you have their written consent to collect the asset
In calculating estate value, you should value assets as of the date of death, and ignore any debts other than liens and encumbrances such as mortgages. Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the small estate affidavit process for most property:
- Prepare an Affidavit of Successor (see below)
- Notify all successors of the decedent (see below) that you intend to claim the asset
- Obtain written permission from any other successors for whom you are at least partially claiming the property
- Provide a copy of the affidavit to any custodian of estate assets to gain custody of the assets
-
Mail a copy of the affidavit, including the decedent's social security number to
State of Washington
Department of Social and Health Services
Office of Financial Recovery
PO Box 9501
Olympia, WA 98507-9501 - Settle the estate in the normal manner (pay all debts, distribute assets)
Real Estate: Transfer of real estate is handled differently; see Real Estate Affidavit below.
Vehicles: Transfer of vehicle ownership is also handled differently. Just fill out Affidavit of Inheritance form, attach a copy of the death certificate, and have the form signed by a clerk at the WA State Department of Licensing. You will also need to fill out an appropriate title application form.
Unpaid Wages: Unpaid wages may be collected (up to $10K) by a spouse, child or parent (in that order) without the use of an affidavit (other than a statement affirming the relationship to the decedent). If the decedent was employed by WA state, there is no cap on the amount of wages. See RCW § 49.48.120.
Affidavit of Successor
The small estate Affidavit of Successor form requires the following information:
- A statement that the requirements listed above have been met
- A statement that the decedent was legally a resident of WA at the time of death
- A description of the asset being claimed, along with a statement that the asset is subject to probate
- The claiming successor's name and address, and a statement that the claiming successor is a "successor" as defined in RCW 11.62.005
- A statement that the claiming successor is entitled to the asset, along with any other successors named on the form
The affidavit must be notarized, and you will need to attach a certified copy of the death certificate.
Successors
As pertains to the small estate process, a "successor" to the estate is:
- Anyone named in the will to inherit
- If there is no will, then anyone who would inherit according to the laws of descent and distribution
- A surviving spouse, just in terms of his or her one-half of any community property
- The department of social and health services, to the extent of funds expended or paid, in the case of claims provided under RCW § 43.20B.080
Settlement without Court Intervention
If the estate is too large for the small estate affidavit process, you can still bypass standard probate by asking for Settlement without Court Intervention in accordance with RCW § 11.68.
Requirements
You can use this approach if:
- The estate is solvent (meaning that there are enough assets to pay all debts, considering all assets, not just those subject to probate)
- You were not a creditor of the estate at the time of death
- You were named in the will as a personal representative, or if there is no will, you are the surviving spouse, the decedent has no living or gestating children, and the estate consists entirely of community property
Process
To use this process:
- Submit a Petition for Settlement without Court Intervention to the court
- Once the court grants you nonintervention powers and issues you your "Letters", settle the estate in the normal manner (collect assets, pay all debts, distribute assets)
- File an Declaration of Completion of Probate, including a completed Receipt & Waiver by Heir or Beneficiary form for each estate inheritor
There are variations of this process; see RCW § 11.68.100 - 68.114.
Court
In Washington, the local Superior Court handles wills and estate matters.
Real Estate Affidavit
If you are using the small estate affidavit process and the estate contains real property (i.e., real estate), you will have to use a Lack of Probate Affidavit form to transfer the property.
In fact, if there is no WA probate, the estate is solvent, and you just need to transfer real property, you can use a Lack of Probate Affidavit regardless of the value of the property.
Although there is no statute that explicitly endorses this practice, it is commonplace, and real estate transferred in this manner is exempt from the Washington State Real Estate Excise Tax (see WAC § 458-61A-202).
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in WA, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in WA, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow WA probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the WA estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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