Can you be forced to initiate Probate?

What is the name of your state (only U.S. law)? Washington

I am executor to my mother's Will and a beneficiary. There are 3 beneficiaries one of which "Bee" does not agree with the other 2.

I was enduring POA for my mom before her passing. Her estate is quite simple with no real estate involved. To this point of the possessions left, there is no dispute on who wants what. There are no creditors, and the file tax return is all that is left of managing her estate other than the distribution of property and money.

The belligerent beneficiary (Bee) wants to have the estate Probated which as stated before isn't a requirement. Since I am from out of state I will have to return to WA. to commence proceedings. DO we have to Probate the estate if she wants it done, and we expect it is to 'uncover' some wrongdoing.

She has alleged wrongdoings before that were dismissed by the courts with costs paid by the estate. We do not want her to commence an unneeded court action and incur huge legal bills that will decimate the value of the remaining monies.

2 questions.
As executor can I proceed without Probate and let her initiate any court proceedings she may wish at her cost?

Can the 2 other beneficiaries successfully have her pay for the costs of Probate?What is the name of your state (only U.S. law)?

1) Do the "wrongdoings" have any merit?

2) What amount of assets are involved?

3) Are all beneficiaries splitting assets equally?

And, are there ANY titled pieces of property (e.g., cars, trucks, stocks, bonds, etc.)?

Heckled said:

2 questions.
As executor can I proceed without Probate and let her initiate any court proceedings she may wish at her cost?

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You are not the "executor".
If you do not open probate, then SHE can open probate. You say probate doesn't need to be open, but it absolutely does, as there are problems with the beneficiaries. Don't be penny wise and pound foolish on this one.

Have to assume that the OP is proceeding by affadavit. Washington is pretty liberal for small estates - those with no real estate and personal property less than $100,000. And no court invovlement at all.

Ah, but those "belligerent beneficiaries" can throw a wrench into the best laid plans.

anteater said:

Have to assume that the OP is proceeding by affadavit. Washington is pretty liberal for small estates - those with no real estate and personal property less than $100,000. And no court invovlement at all.

Ah, but those "belligerent beneficiaries" can throw a wrench into the best laid plans.

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Squibblings always screw things up.

Response to ALl

seniorjudge said:

And, are there ANY titled pieces of property (e.g., cars, trucks, stocks, bonds, etc.)?

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None of the issues had merit and at the time she had a restraining order prohibiting contact with me while I managed my mom's finances and health issues until her death.

There are not any titled pieces of property.

Not sure why someone stated I was not the 'executor'. I am as named in the Will. She is not challenging my position as executor.

I am catching the drift that if a beneficiary is insisting something go to Probate and they have been a past problem that it is safer to go that route and spend the money.

I am just hoping to be able to position this that she will have to cover the costs of Probate and litigation, not that there are any litigatious issues but she can make them up. The courts are wise enough to see thru it though I have found.

Not sure why someone stated I was not the 'executor'. I am as named in the Will. She is not challenging my position as executor.

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The will nominates an executor. The court appoints. No probate. No appointment. No executor.

anteater,
I learned something. Then if there is no executor of a will that isn't probated, what is the name of the person in charge of the estate? Who distributes the assets from the estate?

curb1 said:

anteater,
I learned something. Then if there is no executor of a will that isn't probated, what is the name of the person in charge of the estate? Who distributes the assets from the estate?

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Noone has the LEGAL authority to do anything with the assets of the deceased without the paperwork from the court appointing the executor. As stated before: the will NOMINATES, the court APPOINTS/APPROVES.

Yes tell me more

curb1 said:

anteater,
I learned something. Then if there is no executor of a will that isn't probated, what is the name of the person in charge of the estate? Who distributes the assets from the estate?

Click to expand...

I have read the following which states,

• Given that the authority of the trustee stems from the Will and not the recognition of the courts
• Probate becomes necessary because certain third parties called upon to transfer estate property to the trustee require assurance that the trustee is the valid representative of the estate.

So you are saying that a Will even when it appoints an executor isn't valid unless Probated. That doesn't make sense since the executor duties start at death, and dealing with the funeral. In this case the named executor would have no authority to bury the deceased or pay for the funeral without first getting Probate.

Please confirm how this works?

curb1 said:

anteater,
I learned something. Then if there is no executor of a will that isn't probated, what is the name of the person in charge of the estate? Who distributes the assets from the estate?

Click to expand...

Depends on the state, I guess.

In this case, where the OP is seemingly proceeding on the authority of a small estate affadavit, I guess that he/she would simply be called an Affiant.

Heckled said:

I have read the following which states,

• Given that the authority of the trustee stems from the Will and not the recognition of the courts
• Probate becomes necessary because certain third parties called upon to transfer estate property to the trustee require assurance that the trustee is the valid representative of the estate.

Click to expand...

Just for the heck of it, I lifted the first point verbatim and did a search. Hmmm... It comes up on a Canadian website. Unless the RCMP have very quietly invaded and annexed the state of Washington, Canadian law is not relevant.

So you are saying that a Will even when it appoints an executor isn't valid unless Probated. That doesn't make sense since the executor duties start at death, and dealing with the funeral. In this case the named executor would have no authority to bury the deceased or pay for the funeral without first getting Probate.

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Can you cite Washington law for the bolded?

Less argumentatively, state law varies and, realistically, the law give the nominated executor some leeway. Also, realistically, the nominated executor may get away with certain actions by claiming to be executor. But, you aren't legally executor (I believe WA uses the term pesonal representative) until the court hands you those letters.

Let me ask:
1) Did the funeral director allow you to make the arrangements as executor? Or as a daughter of the deceased?
2) Did you sign the funeral contract as executor of the estate? Or as you personally?
3) Have you tried to present the will anywhere, like a bank, and try to perform a transaction as executor?

I've made a couple comments about assuming that you acting via a small estate affadavit. You have not confirmed that. Are you?

Anteater,

With my revocable trust, I also have a companion will. Both were concurrently drawn by an estate attorney. My will designates an executor. This will will never be probated (because of the trust). Are you suggesting that I should not have a will? Or, since I do have a will that the executor of this will has no power of being the executor? I am asking, not debating.

curb1 said:

Anteater,

With my revocable trust, I also have a companion will. Both were concurrently drawn by an estate attorney. My will designates an executor. This will will never be probated (because of the trust). Are you suggesting that I should not have a will? Or, since I do have a will that the executor of this will has no power of being the executor? I am asking, not debating.

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I assume that the will is meant to handle any assets that are not in the trust when you pass away. And, as hard as you try, there will probably be some assets that are not in the trust. So, no, I'm not suggesting that you don't need a will.

The designated executor derives legal authority by appointment by the court. If it's a case of just disposing of some odds and ends, like clothing and such, the designated executor can probably get away with acting as the arbiter if nobody raises a fuss. Let's call it "informal, non-legal authority." But, if is is necessary for the executor to handle titled assets, then they will almost certainly need letters from the court unless Oregon provides some other legal mechanism.

Is that an answer? I'm not absolutely certain what you are getting at.