A.  Avoiding a Washington Probate

The answer to “How do I avoid probate?” by and large is very simple: Own no property at death, at least no property titled in one’s own name.  The solution is: During your life:

  • To transfer your property, and
  • To take title to your assets in such a way that:
    • During your life, you retain their benefit and control, but
    • At death, you don’t “own” them for purposes of probate — in other words: You need to make your property “nonprobate assets.”

In the website page Is a Probate Necessary?, we looked at how this result may have been accomplished by a Decedent.  And there, we found that to the extent a Decedent had any of the following property, such property, known under the common law as “nonprobate assets,” would pass “outside of probate” — without the necessity of a probate proceeding to clear title:

  • “Umbrella Nonprobate Assets”:  A collection of assets, all of which are subject to or held by a legal mechanism (ie, the “umbrella”) that provides that its collection of assets passes at death outside of probate, making all of the collection nonprobate assets.  Mechanistically, this means that to create an “umbrella asset,” one must first have created the “umbrella,” for example by signing a:
    1. Community Property Agreement:  An agreement between a married couple that provides that any property subject to it will pass at death according to the terms of the agreement, usually to the surviving spouse; or
    2. Living Trust:  An agreement that provides that any property transferred to it will be held by the trust for the transferor’s benefit during his/her life, and at his/her death will continue to be held by the trust, but now for the benefit of the successor beneficiaries, usually the transferor’s surviving spouse, if any, and children.
  • “Solitary Nonprobate Assets”:  Any asset that is titled in a legal form that allows that specific asset to pass outside of probate, making that one, specific asset a nonprobate asset.  Mechanistically, this means that to create a “solitary asset,” one needs only to take title to it in, or to transfer it into, its pertinent legal form.  Examples:

    “Joint Tenancy Nonprobate Assets”:

    1. Joint Tenancy Property (but not property held as a tenant-in-common):  Which passes at death to the surviving joint tenants;
    2. Joint Bank Accounts with Right of Survivorship:  Which pass to the surviving joint tenants;

    “Death Beneficiary Designation Nonprobate Assets”:

    1. POD Accounts:  Payable-on-death (ie, “in trust for, ‘Totten trust'”) bank accounts, which pass at death to the designated payable-on-death beneficiaries;
    2. TOD Securities:  Transferable-on-death securities and securities accounts, which pass at death to the designated transferable-on-death beneficiaries; note that unlike the situation in several other states, the POD/TOD form of ownership is unavailable for real property in WA;
    3. IRAs:  Property held in Decedent’s individual retirement accounts, which property passes at death to the designated beneficiaries;
    4. Life Insurance Contracts:  The paid-on-death proceeds of life insurance contracts on Decedent’s life, which proceeds are paid at death to the designated beneficiaries; and
    5. Employee Benefit Plans:  The paid-on-death proceeds of Decedent’s employee benefit plans, which proceeds are paid at death to the designated beneficiaries.
  • Other, infrequent types, for example:
    1. “Foreign” Property:  Real property or tangible personal property located outside the State of Washington (for which a probate may be necessary in that state);
    2. Wrongful Death Awards:  Which are awarded to Decedent’s survivors (although the lawsuit itself can be prosecuted only by Decedent’s Personal Representative, necessitating a probate for his/her appointment) (see RCW 4.20.020); and
    3. Retained Life Estates/Remainders:  Property whose title Decedent has transferred (ie, remainders) but whose possession Decedent has retained until his/her death (ie, retained life estates), which property passes at death to the remainder grantees according to the Deed or other conveyance document.

So that, in effect, provides the answer:

To the extent that one has titled or transferred one’s assets during life so that they are nonprobate assets at death, no probate should be required to clear their title.

If all of one’s assets are nonprobate assets at death, a probate will be avoided — at least to clear title to one’s assets.

A probate may nevertheless be necessary for other reasons, such as those discussed in Is a Probate Necessary? This section discusses the more popular of the foregoing nonprobate assets in greater detail.

Sidebar: Use of the Terms “Nonprobate Assets” vs. “Will Substitutes”