You're Not Nominated in the Will
Starting a Probate When You're Not Nominated in the Will
If there is a will, but the person nominated in the will as personal representative fails to petition the court for appointment within 40 days after death (because they don't want to serve or are deceased), the court will appoint any "suitable person" as administrator of the estate, giving him or her "Letters of Administration with Will Annexed," rather than "Letters Testamentary." The process for getting appointed and obtaining nonintervention powers is similar to situations where there is no will. Also, the court will often require the administrator to obtain a bond before being appointed. However, once appointed, the process for administering the estate is the same as if you were appointed as "personal representative" with Letters Testamentary.
This page describes the process of getting appointed as Administrator when you are not nominated as personal representative in the will.
Getting Appointed
If there is a will, during the first 40 days, the law allows the named personal representative, or alternate(s) if primary PR is unable to serve, to be appointed to administer the estate. If no one makes application with the Court within 40 days, any "suitable person" can make application to serve. If the nominated individual and alternates are deceased, and you are still in the initial 40 day period, I recommend that you follow the priorities set out in RCW 11.28.120, namely, the surviving spouse is able to apply first, followed by children, parents, siblings, grandchildren and nieces and nephews. After 40 days, however, any “suitable person” can make application and be appointed by the Court without prior notice to any of the heirs or beneficiaries. However, to get nonintervention powers, which you really want, you need to give prior notice of that request.
Getting Nonintervention Powers
Nonintervention powers is the key to being able to administer the estate efficiently and cheaply. Therefore, getting appointed as the Administrator is not enough. You want nonintervention powers too. To obtain nonintervention powers when you are not named in the will, you must give notice to all of the heirs and beneficiaries that you plan to ask for nonintervention powers. This is described in RCW 11.68.041. This notice requirement can be accomplished in one of two ways: with waivers or with a scheduled hearing.
WAIVERS
Far and away the easiest way to obtain nonintervention powers when there is no will is to get waivers from all of the heirs of the estate. If your family is cooperating and they agree that you should be the administrator of the estate, this will be relatively easy. A sample waiver can be found here (PDF) (Word). Each heir of the estate must sign a separate waiver. In each waiver, your family member needs to specifically waive his or her right to notice of the hearing. If you are able to get waivers from everyone, you do not need to schedule a hearing. That process is described on the Initial Hearing page.
SCHEDULING A COURT HEARING
If you are unable to obtain waivers from all of the heirs, you should consider hiring an attorney to help you through this process. But if you insist on doing this yourself, you will need to schedule a hearing, file the appropriate documents, mail all of the documents to the heirs before the hearing, and appear for the hearing. This process is described on the Initial Hearing page.
What about a Bond?
Since the will doesn't say that you are supposed to be appointed without a bond, the Commissioner is required by law (RCW 11.28.185) to consider whether you should be required to get a bond before getting your Letters of Administration with Will Annexed. In determining the amount of bond, the Commissioner will generally require you to provide a preliminary inventory of the estate. The Petition you provided to the Commissioner should contain this information.
The bond requirement is intended to protect those parties interested in the estate from the risk that you, as the Administrator, will take or waste estate assets or otherwise mismanage the estate unlawfully. Those parties could include beneficiaries, creditors, taxing authorities or professionals assisting the estate, such as attorneys or accountants.
If the court requires a bond, you will need to obtain one before the Clerk will issue the Letters of Administration with Will Annexed, and then return to Ex Parte to have the bond signed by the Commissioner. If a bond is required, you can obtain one from various bonding companies in the Seattle area. You can google “fiduciary bond in probate” to find some companies that can help. For a typical $10,000 bond, these companies will often charge about $100.00 a year for the premium.
Who are the heirs and beneficiaries?
If you aren't the named personal representative in a will and want nonintervention powers, you must first get waivers from each of the heirs and beneficiaries of the estate or you must give all of them proper notice that you are asking the Court to give you this power. So you need to know who the heirs and beneficiaries of the estate are.
The heirs of the estate are the people who are entitled to a share of the estate if there is no will. See RCW 11.02.005(6) and RCW 11.04.015. This is also called the “intestate" heirs. For instance, under the laws of "intestate succession," if your mother passed away and she left no surviving spouse, but did leave behind three surviving children, then the three surviving children are your mother’s heirs. If one of the children passed away before your mother and left a child living, then that grandchild would also be an heir. But if the surviving children also have children, those grandchildren are not heirs because their parents are living. This set of preferences is described at RCW 11.04.015.
The term “beneficiaries” is easier to understand: They are the people entitled to a portion of the estate under the will. This is often the same people, but doesn't have to be. Note that "beneficiaries" can also describe recipients of nonprobate assets, but the notice requirement for nonintervention powers under RCW 11.68.041 applies only to beneficiaries under a will.
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