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Wills and Trusts
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Probate and Estate Settlement
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Various nonimmigrant visas permit foreign nationals and their family members to visit, live, and work in the U.S. temporarily. Each nonimmigrant visa category has its own special requirements and strict limitations on the scope of permissible activities. We are skilled to provide you with comprehensive legal advice and representation regarding various nonimmigrant visa options that may be available to you and your family members:
- H-1B visas for temporary qualified workers in specialty occupations (at least a Bachelor’s degree is required to be eligible for this visa);
- L-1A and L-1B visas for intracompany transfer of foreign-based managers, executives, and employees with specialized knowledge;
- O-1 visas for foreigners who have risen to the very top in their respective field of science, education, business, or athletics, and for persons who are "prominent" in the arts, medicine, entertainment, music, filming industry, for senior executives of the U.S. - based entities with worldwide operations, and similarly situated persons; and
- P-1 visas are the option for internationally recognized athletes and artists, as well as similarly situated persons.
We also assist our clients with issues relating to other nonimmigrant visas for temporary employment in the U.S., such as:
- J-1 visas for foreign scholars and researchers working at the U.S. universities and research institutes;
- H-3 visas for foreign trainees coming to the U.S. to receive training that is not available in their home country and that does not involve productive labor, except as necessary and incidental to the training; and
- F-1 visas for students who may engage in one-year "optional practical training" after graduating from a U.S. accredited college or university.
Certain foreigners and their family members may immigrate to live and work in the U.S. permanently through family ties or through employment-based opportunities. We are skilled to provide comprehensive legal advice and represent you regarding various immigrant visa options that may be available to you and your family members:
Petitions for Immediate Relatives of U.S. Citizens
We help our U.S. citizen clients to apply for permanent resident status for their spouse, unmarried children under age 21, or parents. Applying for a spouse involves extensive paperwork, but it is fairly routine if a spouse already resides in the U.S. at the time of marriage. For persons who become engaged or married while living overseas, it is important to consider whether to apply for the immigrant visa overseas, to enter the U.S. under a K-1 fiance(e) visa, or to take advantage of the K-3 visa for a spouse to facilitate entering the U.S. while the immigrant visa petition is processed on behalf of a U.S. citizen’s spouse.
Extraordinary Aliens, Multinational Executives, Outstanding Researchers (EB-1 Category)
The first preference category of employment-based green cards is for aliens of extraordinary ability, outstanding professors and researchers, and multinational executives. Persons applying under EB-1 category are not required to file and obtain approval of a Permanent Employment Certification (PERM Application) by the U.S. Department of Labor to demonstrate there are no qualified U.S. workers with similar qualifications willing and able to perform the job offered to a foreign worker.
Professionals with Advanced Degrees and Persons of Exceptional Ability (EB-2 Category)
The second preference category is for persons with "exceptional ability” in the sciences, arts, or business. This category is also available to professionals with a Master's or higher degree or a Bachelor's degree plus five years of progressive post-baccalaureate experience. EB-2 petitions require a PERM Application with the U.S. Department of Labor unless the person qualifies for a "national interest waiver." The national interest waiver requires proof that (1) the alien's occupation is in an area of substantial intrinsic merit; (2) the alien's work will benefit the nation as a whole (rather than just a local geographic area); and (3) the alien's ability to contribute to the national interest is substantially greater than the majority of his or her colleagues in the field and outweighs the national interest in protecting U.S. workers through the PERM Application process.
Professionals and Skilled Workers (EB-3 Category)
Persons who fall into the third preference category require a PERM Application with the U.S. Department of Labor to demonstrate there are no U.S. workers with similar qualifications willing and able to perform the job offered to a foreign worker.
Treaty Traders & Treaty Investors
E-1 and E-2 visas respectively are available to treaty traders or treaty investors who are nationals of countries with which the U.S. has a treaty of commerce and navigation who are coming to the U.S. to carry on substantial trade, including trade in services or technology, between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or in the process of investing a substantial amount of capital (for a list of participating countries see http://travel.state.gov/visa/fees/fees_3726.html).
Investors Seeking to Engage in Commercial Enterprise (EB-5 Category)
EB-5 visas are the option for immigrant investors seeking to engage in a commercial enterprise that will benefit the U.S. economy under either:
- the regular program (investment of at least $1 million, or at least $500,000 if investing in a targeted employment area, and creation of 10 full-time jobs; or investment in a troubled business and maintenance of existing employees at the pre-investment level for at least 2 years) or
- the pilot program (investment in a commercial enterprise located within a regional center and creation of 10 or more jobs directly or indirectly as result of the investment).
PERM Applications with U.S. Department of Labor
A PERM Application process involves advertising the job to the U.S. workers over a certain period in a manner normal to a specific company and industry and pursuant to the Regulations of the U.S. Department of Labor. PERM process is time consuming and challenging. However, we are particularly skilled in successfully obtaining approvals of PERM Applications, including audits of the same by the U.S. Department of Labor, on your behalf which further allows you to proceed with your applications for a permanent green card in the U.S.
I-140 petition is required to preserve an approved PERM Application for certain employment-based categories and is an intermediary petition before you may file an application to adjust your status to a permanent lawful resident in the U.S (green card application). After an I-140 Petition is approved by the USCIS, we assist you with preparation and filing of your green card application.
Employment-Based Permanent Green Cards & US Citizenship
We also represent individuals who wish to apply for a permanent green card through their employment as well as for a U.S. citizenship after having obtained a permanent green card. Certain basic requirements for U.S. citizenship shapplicants are as follows:
(1) five years of continuous residence in the United States after being lawfully admitted as lawful permanent resident (three years in the case of spouses of U.S. citizens); and
(2) physical presence in the United States for at least half of such five-year (or three-year) period. Absence from the U.S. for a continuous period of one year or more during the five-year (or three-year) period breaks the continuity of residence in most cases. Absence from the U.S. of more than six months but less than one year during this period also breaks the continuity of residence unless the applicant can establish that he or she did not abandon residence in the U.S. during the absence.
One of the options is an EB-5 investor visa. All EB-5 investors must invest in a commercial enterprise which is:
- Established after November 29, 1990, or
- Established on or before November 29, 1990 and is
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise comes into existence, or
- Expanded through the investment which leads to a 40-percent increase in the net worth or number of employees.
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust or other entity, which may be publicly or privately owned.
This includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This, however, does not include noncommercial activity such as owning and operating a personal residence.
What are Job Creation Requirements?
- Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the U.S. as a Conditional Permanent Resident.
- Create or preserve either direct or indirect jobs if a foreign investor makes investment through a regional center under a Pilot Program which requires a lower threshhold of investment capital.
Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise through a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if his or her investment is through a regional center under a Pilot Program. Further, foreign Investors may only be credited with preserving jobs if investing in a troubled business.
What is a Troubled Business?
A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date of the foreign investor’s petition. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. In determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
What is a Qualifying U.S. Worker?
A qualified U.S. worker is a U.S. citizen, permanent resident, or other immigrant authorized to work in the U.S. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the U.S. under suspension of deportation. This does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the U.S.
What is a Full-Time Employment?
Full-time employment means employment of a qualifying U.S. worker by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying U.S. worker in a position that has been created indirectly from investments associated with the Pilot Program.
A job-sharing arrangement whereby two or more qualifying U.S. workers share a full-time position will count as full-time employment provided the hourly requirement per week above is met. This does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the above hourly requirement per week. The position must be permanent, full-time, and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
What Capital Investment is a Foreign Investor Required to Make?
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by a foreign investor provided he or she is personally and primarily liable, and the assets of the new commercial enterprise are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital. Required minimum investment levels are:
- Generally, the minimum qualifying investment in the U.S. is $1 million.
- Targeted Employment Area (High Unemployment or Rural Area): the minimum qualifying investment either within a high-unemployment area or rural area in the U.S. is $500,000. The same capital investment requirement applies if an EB-5 investor invests in a project through an approved regional center.
A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate. A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its foreign offices to one of its offices in the U.S. This classification also enables a foreign company which does not yet have a U.S. office to send an executive or manager to the U.S. to establish a new office.
To qualify for L-1A classification, the U.S. employer must:
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate); and
- Currently be, or will be, doing business as an employer in the U.S. and in a foreign country (but is not required to be engaged in international trade).
Doing business means the regular, systematic, and continuous provision of goods or services and does not mean the mere presence of an agent or office of a foreign employer in the U.S. and abroad.
Also to qualify, the named employee must:
- Have been working for a foreign employer abroad for 1 continuous year within the 3 past years immediately before his or her admission to the U.S.; and
- Be seeking to enter the U.S. to render services as an executive or manager for the foreign employer.
If a foreign employer wishes to send an employee to the U. S. as an executive or manager to establish a new office, it must also be shown that:
- Physical premises to house a new office have been obtained;
- The employee has been employed as an executive or manager for 1 continuous year in the 3 past years before the filing of the petition; and
- The intended U.S. office will support an executive or managerial position within 1 year of the approval of the petition.
Period of Initial Stay & Extensions of Stay in the U.S.
Qualified workers will be allowed a maximum initial stay of 1 year. All other qualified workers will be allowed a maximum initial stay of 3years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional 2 years until the employee has reached the maximum limit of 7 years.
Family of L-1A Workers.
The transferring worker may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 status and, if approved, generally will be granted the same period of stay as the L-1A worker. If these family members are already in the U.S. and wish to change their status to, or extend their stay in, L-2 classification, they may apply collectively. Spouses of L-1A workers may apply for work authorization and, if approved, there is no specific restriction as to where the L-2 spouse may work.
A fiancé(e) visa allows a U.S. citizen to sponsor a loved one from a foreign country to enter the United States for the purpose of getting married. It is the most commonly used method utilized by international couples to meet and marry within the United States. This visa allows a foreign fiancé(e) to enter the U.S. and marry the U.S. citizen who sponsored him or her within 90 days after entry into the U.S. Should the couple have a change of heart and decide to not get married, the foreign national must then leave the country within this time period or be faced with a removal hearing. It usually takes at least three to four months (sometimes longer) to get a fiancé(e) visa issued depending upon the place of residence of the U.S. citizen and the U.S. consulate at the place of residence of a foreign fiancé(e).
A K-3 Spousal Visa allows a foreign spouse of a U.S. citizen to enter the United States on a temporary visa while awaiting processing of his/her Immediate Relative petition and subsequent lawful permanent residency. Children of the U.S. citizen are allowed to enter on K-4 Visas.
Section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA) waives the "unlawful presence" ground of inadmissibility for foreign nationals if they can demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer "extreme hardship" if the foreign national is not allowed to return to the United States.
Foreign nationals who voluntarily depart the United States after accuring over six (6) months of "unlawful presence" in the United States are deemed ineligible to re-enter the U.S. for three (3) years starting from the date of their departure.
Foreign nationals who depart the United States after accruing over twelve (12) months of "unlawful presence" in the United States are deemed ineligible to re-enter the U.S. for ten (10) years starting from the date of their departure.
Unlawful presence is any period in which a foreign national is present in the U.S. after expiration of his or her period of authorized stay, i.e. after the expiration date found on the his or her I-94 record of departure card, or after entering the U.S. without being admitted or paroled, i.e. after entering the U.S. illegally without inspection.
This "unlawful presence" ground of inadmissibility typically poses a problem for spouses of U.S. citizens who entered the U.S. illegally without inspection (i.e. through the U.S-Mexican border).
Although these spouses are eligible to apply for U.S. lawful permanent residency through their marriage to a U.S. citizen, they cannot adjust their status while remaining in the U.S. (with the small exception of those who qualify under INA 245(i)).
Thus, these spouses must eventually return to their home country for an interview at the U.S. embassy/consulate as part of the process of obtaining U.S. lawful permanent residency. This departure from the U.S. and application for readmission triggers the "unlawful presence" bar described above. The extreme hardship waiver allows the unlawful presence ground of inadmissibility to be waived and the foreign spouse to successfully and legally return to the United States to pursue lawful permanent residency process.
Generally, foreign nationals who have been ordered removed may not be readmitted to the United States until they have remained outside the country for a specified period of time:
1. Five (5) years for individuals removed through summary exclusion or through removal proceedings initiated upon the person's arrival into the U.S.;
2. Ten (10) years for those otherwise ordered removed after a deportation hearing or who departed the U.S. while an order of removal was outstanding; and
3. Twenty (20) years for a second or subsequent removal.
Section 212(a)(9)(C)(ii) of the Immigration and Nationality Act (INA) allows foreign nationals to apply for early readmission into the U.S. after having been previously removed and before they have met their required statutory period of stay outside the U.S.
The knowledge that we will eventually die is one of the things that seems to distinguish humans from other living beings. At the same time, no one likes to dwell on the prospect of his or her own death. But if you postpone planning for your demise until it is too late, you run the risk that your intended beneficiaries - those you love the most - may not receive what you would want them to receive whether because of extra administration costs, unnecessary taxes, or squabbling among your heirs.
This is why estate planning is so important, no matter how small or large your estate may be. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want. It permits you to save as much as possible on taxes, court costs, and attorneys' fees; and it affords the comfort that your loved ones can mourn your loss without being simultaneously burdened with unnecessary litigation, public exposure, or financial confusion.
Any successful estate plan regardless of what you own should include, at a minimum, the following documents:
- Durable Powers of Attorney for Health Care and Financial purposes;
- Will and/or Trust depending on your personal, financial, and family circumstances, including any special needs that you or your family members may have;
- Health Care Directive to Physicians regarding life support measures, should you become terminally ill or be in a permanent unconscious condition;
- List of Tangible Personal Property, should you decide to dispose of certain personal property in a way different from your Will or Trust; and
- Beneficiary designations for assets passing outside your Will which must be consistent with your overall Estate Plan to be effective. Such assets include jointly owned assets with the right of survivorship, payable or transferrable on death accounts, property placed in a trust, life insurance proceeds passing to a designated beneficiary, annuities, Individual Retirement Accounts, 401(k) plans, or other retirement benefits.
Your will is a legally binding document directing who will receive your property when you pass away. It also appoints a legal representative (personal representative, also known as executor) to carry out your wishes.
However, the will transfers only probate property to your loved ones when you pass away. Many types of property or forms of ownership pass outside of a probate process by a beneficiary designation. Such property includes jointly owned assets with the right of survivorship, payable or transferrable on death bank accounts, property placed in a trust, life insurance proceeds payable to a designated beneficiary, or other property with a named beneficiary such as annuities, Individual Retirement Accounts, 401(k) plans, or other retirement benefits.
To that end, it is very important to have up-to-date beneficiary designations which are, most importantly, consistent with your overall estate plan to make it effectively work for you and your loved ones.
Here are some reasons why you should have a will:
- First, with a will you can direct where and to whom your estate (what you own) will go after you pass away. If you pass away without a will (intestate), your estate would be distributed according to Washington state law. Such distribution may, but most often will not, accord with your wishes.
- Many people try to avoid probate and the need for a will by holding all of their property jointly with their spouses or children. This can work in certain cases, but most often, people end up spending unnecessary effort and money trying to make sure all assets pass by joint ownership which may cause unequal distribution of assets among your loved ones or defeat distribution of such assets by a long-term illness of the parent or the death of a child. A will can be a much simpler means of effecting your wishes about how assets should be distributed among your loved ones.
- The second reason to have a will is to make the administration of your estate run smoothly. Often the probate process can be completed more quickly and at less expense to your estate if there is a will. With a clear expression of your wishes, there are unlikely to be any costly, time-consuming disputes over who gets what.
- Third, only with a will can you choose the person to administer your estate and distribute it according to your instructions. This person is called your "personal representative" (also known as “executor”;). If you do not have a will naming a personal representative, the court will make the choice for you as required under Washington law.
- Fourth, for larger estates, a well planned will can help significantly reduce or even eliminate federal and/or state estate taxes imposed on the value of the person’s estate when a person dies.
- Lastly, through a will you can appoint who will take your place as a guardian of your minor children, should both you and your spouse pass away in an accident or disaster.
Durable powers of attorney are the most important estate planning documents you should have. A power of attorney allows a person you appoint - your "attorney-in-fact" or “health care agent” - to act in your place to make financial or health care decisions on your behalf when and if you become disabled or incapacitated. Such powers of attorney may also be made effective immediately (after you sign them), which may be especially helpful in situations with elderly parents or other family members when your attorney-in-fact or health care agent has authority to act quickly in case of an emergency.
When you designate an attorney-in-fact or health care agent, that person will be able to step into your shoes and take care of your financial or health care affairs when you are unable to do so yourself. Further, a durable power of attorney for health care works together with your health care directive to physicians allowing your health care agent to carry out your wishes regarding what medical care you want provided or withheld in the event you are diagnosed with a terminal illness or become permanently unconscious.
Without a durable power of attorney, no one can represent you unless a court appoints a legal guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer to act as your guardian. In addition, under a guardianship, your representative may have to seek court permission to take planning steps that he or she could implement immediately under a durable power of attorney.
A power of attorney may be limited or general in nature. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town, make certain business decisions for you when you are unable to do so, take care of your pets during your vacation, or allow someone to sign checks for you. A general power of attorney is comprehensive and gives your attorney-in-fact or health care agent all the powers and rights that you have yourself.
Health Care Directive to Physicians is a legal document that allows you to explicitly express your preferences for medical care and legally binds your health care providers to your wishes. You can specify what medical care you want provided or withheld in the event you are diagnosed with a terminal illness or become permanently unconscious. This document works together with your Health Care Durable Power of Attorney, under which your designated Health Care Agent is empowered to supervise the wishes you set out in your Health Care Directive.
A trust is a legal arrangement through which one person (or an institution, such as a bank), called a "trustee," holds legal title to property for your designated beneficiaries (persons who will inherit your assets when you pass away). The rules or instructions under which the trustee operates are set out in the trust instrument. Trusts have one set of beneficiaries during their lives and another set - often their children - who begin to benefit only after the first group of beneficiaries has passed away. The first are often called "primary beneficiaries" and the second "contingent beneficiaries.”
There can be several advantages to establishing a trust, depending on your personal and financial situation. Best known is the advantage of avoiding a probate process or a guardianship proceeding. In a trust that terminates when you pass away (a person who creates a Trust or (donor), any property placed in the trust prior to your death passes immediately to the primary beneficiaries according to the terms of the trust without requiring a probate process to transfer assets. This can save time and money for the trust beneficiaries. Certain trusts can also result in tax advantages both for you and your spouse. These trusts are known as "credit shelter" or "bypass” trusts. Other trusts may be used to protect property from creditors or to help you or your beneficiary qualify for public benefits, such as SSI or Medicaid.
Unlike wills, trusts are private documents (except testamentary trusts in Wills that are filed with a probate court) and only those individuals with a direct interest in the trust need know of trust assets and distribution. Provided they are well drafted, another advantage of trusts is their continuing effectiveness even when you pass away or become disabled or incapacitated.
Generally, trusts fall into two (2) basic categories: testamentary and inter vivos trusts. A testamentary trust is one created by your will, and it does not come into existence until you pass away. In contrast, an inter vivos trust starts during your lifetime. You create it now and it exists during your life. There are two (2) kinds of inter vivos trusts: revocable and irrevocable.
Revocable trusts are also known as "living" trusts. With a revocable trust, you (person who creates the trust or donor) maintains complete control over the trust and may amend, revoke, or terminate the trust at any time. This means you can take back the funds or assets you put in the trust or change the trust's terms. With this, you can reap the benefits of the trust arrangement while maintaining the ability to change the trust at any time prior to death. A revocable trust (or your portion of it if you create it with a spouse) becomes irrevocable when you pass away.
Revocable trusts are generally used for the following purposes:
- Asset management and control - you as trustee have the power to administer, invest, and control the disposition of the trust property for your benefit during lifetime as well as for the benefit of your trust beneficiaries upon your death.
- Probate avoidance - when you pass away, the trust property passes to whoever is named in the trust to receive the trust assets (trust beneficiaries). It does not come under the jurisdiction of the probate court and its distribution need not be controlled by a probate process. However, the property of a revocable trust will be included in your estate and estate tax may be imposed on its value (if the estate is large enough to be subject to federal and/or state estate taxes).
An irrevocable trust can be created either during your lifetime or by a will and generally cannot be changed or amended by you (person who creates the trust) once it is created or, if a trust is created under a Will, when you pass away. Any property placed into an irrevocable trust may only be distributed by the trustee as provided for in the trust document itself. Irrevocable trusts take many different forms and serve different purposes. For example:
As noted above, a testamentary trust is a trust created under your will. Such a trust has no power or effect until your will is admitted to probate. Although a testamentary trust will not avoid the need for probate and will become a public document as it is a part of the will, it can be useful in accomplishing other estate planning goals. For instance, the testamentary trust can be used to reduce estate taxes on the death of the first spouse or provide for the care of a disabled child or teach your children how to manage assets available for their benefit under the trust.
Supplemental Needs Trusts
The purpose of a supplemental needs trust is to enable you (person who creates the trust) to provide for the continuing care of a disabled spouse, child, relative, or friend. The beneficiary of a well drafted supplemental needs trust will have access to the trust assets for purposes other than those provided by public benefits programs like SSI or Medicaid. This way, the trust beneficiary with special needs will not lose eligibility for benefits such as Supplemental Security Income, Medicaid, and low-income housing. You can create a supplemental needs trust under your Will or during you lifetime. Moreover, such trust can be created for your own benefit during your life or for the benefit of your family member during your life or when you pass away.
When a close family member passes away, you may find out a probate of the estate is necessary to transfer assets and pay debts of the deceased family member. Why is it necessary? Generally, a probate is the process by which a deceased family member's property, known as the "estate," is passed to his or her heirs (people named in the Will) no matter how small or large the estate is, with certain exceptions. On the average, the entire probate process supervised by one of the Washington county's Superior Court takes about a year. However, certain interim distributions of the estate assets may generally be made to heirs during this time.
The emotional trauma brought on by the death of a close family member is often accompanied by bewilderment about the financial and legal steps the survivors must take. For example, what do you do if the spouse who passed away may have handled all of your finances during marriage? Or perhaps a child must begin taking care of probating an estate of a deceased parent about which he or she knows little. And this task may come on top of commitments to family and work that cannot be set aside. Lastly, the estate itself may be in disarray or scattered among many accounts or even various properties in different states, which is not uncommon for older generations.
Here we explain the steps the surviving family members should take when they loose a family member. These responsibilities ultimately fall on whoever is named in a Will to be appointed a personal representative. Matters can be a bit more complicated in the absence of a will, because it may not be clear who has the responsibility of carrying out these steps. However, we can guide you what Washington law says in such cases.
- First, secure the tangible property. This means anything you can touch, such as silverware, dishes, furniture, or artwork. You will need to determine accurate values of each piece of property, which may require appraisals, and then distribute the property as the deceased directed. However, do not make any distributions of tangible assets unless you have talked to a probate attorney first.
- Second, take your time. You do not need to take any immediate steps. While bills do need to be paid, they can wait a month or two without adverse repercussions. It is more important that you and your family have time to grieve. Financial matters can wait with one exception: Social Security should be notified within a month of death.
- Lastly, when you are ready, meet with a probate attorney to review the steps necessary to administer the deceased's estate and open probate process. Bring as much information as possible about finances, assets, and debts of the deceased. Do not worry about putting the papers in order first; the attorney will have experience in organizing and understanding confusing financial statements or other information.
Generally, estate administration includes the following steps:
1. Filing the Will and petition with a Washington Superior Court for appointment of a person named in the Will as a personal representative (sometimes known as executor). Simply having a person named in the Will does not give him or her authority to administer the estate. In the absence of a Will, heirs must petition the court to be appointed as an administrator of the estate.
2. Collecting the assets and debts of the decedent. This means you, as the personal representative or administrator, have to find out everything the deceased owned and secure all assets and debts for proper administration and distribution, or payment.
3. Paying bills and estate taxes. Generally, you as the personal representative must pay the decedent’s last bills and cancel certain utility and other services the decedent had. If an estate tax return is required to be filed, it must be filed within nine months of the date of death. If you do not have all the information available in time to file the estate tax returns, you can file for an extension and pay the estimated estate tax due. Your probate attorney will work closely with an estate accountant to determine if estate tax returns are required to be filed with the IRS and Washington Department of Revenue.
4. Filing income tax returns. You must also file a final income tax return for the decedent and, if the estate holds any assets and earns interest or dividends over $600 in a year, an income tax return for the estate may also be required to be filed with the IRS. Again, your probate attorney will work closely with an estate accountant to determine appropriate income tax filings.
5. Distributing property to the heirs and beneficiaries. Generally, the personal representative does not pay out all of the estate assets until the applicable period runs out for creditors to make claims and get repaid as well as setting funds aside for administration expenses and taxes. Your probate attorney will advise you when the distributions should be made.
6. Filing a declaration of completion of probate. You as the personal representative must file a declaration with a Washington Superior Court that the estate is ready to be closed and that you are ready to finish your work and get discharged from your fiduciary duties. You are also entitled to receive compensation for your services as the personal representative.
A probate administration is very straightforward and relatively inexpensive in Washington and you should not be concerned that your estate may go through a probate process when you pass away.
In certain situations, a probate process through court may be avoided by titling your assets as joint owners or transferring assets to certain trusts during your life. In certain cases however, joint ownership of assets or holding assets in a trust may harm you or your family members depending on your particular financial and family situation. Moreover, even if you attempt to avoid a probate process at death by use of joint ownership assets or trusts during your life, a person left in charge of taking care of your assets when you pass away still has to pay all debts, file tax returns, and distribute the property to your loved ones. Before making a significant decision about how to pass your assets to your loved ones at death, you should consult a qualified attorney regarding the appropriateness of your decisions.