The Affidavit Lack of Probate (or “No Probate”) is a factual confirmation which supports 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 my 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.
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