Probate and Who's in Charge
The short answer
Probate is the court process that puts someone in charge of the estate. In Washington, a house in the person's name alone usually needs it. Unless the house is in a trust or passes another way, such as to a spouse under a community property agreement, no one can sell it until the court appoints that person. Being named in the will isn't enough.
What to do now
Check how the house is owned
In their name alone, in a trust, or shared with someone else.
Find out who is in charge
The executor named in the will, the trustee of a trust, or, with no will, usually the closest family.
Talk to a probate attorney
They can tell you quickly whether probate is needed and how long it may take.
Overview
Guides on who can sell the house
- Who Has Authority to Sell Probate Property?: The full answer: letters, nonintervention powers, court-supervised sales and what a title company asks for.
- Understanding Probate & Legal Authority (this page): A step in the estate guide: where authority comes from, in plain terms.
- Washington State Probate Guide (flow chart): Find your situation: will or no will, trust, joint ownership, and your role.
Who Has the Authority to Make Decisions?
Before anyone can sell the house or make binding decisions for the estate, someone has to have legal authority to act. Everything else depends on it, and mistakes made at this stage are costly to undo.
What Probate Is, and What It Isn't
Probate is the court process for administering a deceased person's estate, though in Washington most estates are then handled with little court involvement. It involves validating the will, appointing an executor, notifying creditors, paying debts, and ultimately distributing assets to heirs.
In Washington State, the probate process is relatively straightforward for most estates, though it does take time: typically six months to a year or more for an average estate.
Not everything goes through probate. Assets that pass by beneficiary designation (life insurance, retirement accounts, accounts designated as "payable on death") transfer directly to the named beneficiary outside of probate. Assets held in joint tenancy pass automatically to the surviving owner. Assets held in a properly funded living trust also pass outside of probate.
What typically does go through probate: assets owned solely in the deceased's name, including real property, bank accounts without beneficiary designations, and personal property of significant value.
Do You Need Probate in Washington State?
Washington State has two main paths:
Full probate is usually required when the estate includes real property titled solely in the deceased's name, or when significant assets don't have beneficiary designations or co-owners. A house can still pass without probate in some cases, for example to a surviving spouse under a community property agreement (RCW 26.16.120). A personal representative (executor) is appointed by the court. Most are granted nonintervention powers, which let them settle the estate, including selling the house, without further court orders.
Small estate affidavit is available when the whole probate estate, including any real estate, is worth $100,000 or less after liens. Forty days after the death, heirs can collect personal property such as bank accounts without probate. It cannot transfer real estate (RCW 11.62.010).
A probate attorney can tell you which applies to your situation.
Who Has Legal Authority Over the Estate
Who has authority decides what can and cannot happen:
If there is a will: The person named as executor (called "personal representative" in Washington State) has authority, but only after being formally appointed by the court. Being named in the will alone is not sufficient. The will is filed with the Superior Court (any Washington county; a party can later ask to move the case to the county where the person lived), and the court must issue Letters Testamentary before the executor can legally act.
If there is a trust: The named trustee has authority over assets held in the trust, generally without court involvement.
If there is no will: The court will appoint an administrator, typically the closest next of kin, to administer the estate under Washington's intestacy laws.
If no one has authority: If there is no will, no trust, and no one with legal authority, the family cannot sell real estate or make binding decisions for the estate without a court order. Bank accounts and other personal property can sometimes be collected without court: if the probate estate is $100,000 or less, a successor can use a small estate affidavit 40 days after the death (RCW 11.62.010). This situation can be fixed, but it is time-consuming and expensive to resolve.
The Personal Representative's Role
The personal representative (executor) in Washington State is responsible for:
- Filing the will with the Superior Court
- Notifying beneficiaries and creditors
- Inventorying and appraising estate assets
- Paying valid debts and taxes
- Filing final tax returns
- Distributing assets to heirs
- Closing the estate
This is a fiduciary role, meaning the personal representative is legally required to act in the best interests of the estate and its beneficiaries, not their own interests.
Common Legal Questions Families Have
Do we need probate before selling the home?
If the home was titled solely in the deceased's name, yes: probate (or at minimum a court order) is typically required before the property can be sold. A title company will not insure the sale without proper legal authority.
What if siblings disagree about selling?
The personal representative has the legal authority and responsibility to administer the estate, including making decisions about property, based on the will and Washington State law, not by consensus among heirs. If heirs cannot agree, during probate the personal representative decides, under the will and the law; partition applies once the house has been distributed and the heirs own it together, when a co-owner can ask the court to divide or sell it (RCW 7.52.010).
How long does probate take in Washington State?
A straightforward estate typically takes six months to a year. More complex estates (contested wills, significant debts, multiple properties, out-of-state assets) can take longer.
Getting the Right Legal Help
Real Property Planning does not refer anyone to attorneys. Choose a Washington-licensed probate attorney yourself; you can confirm any lawyer's license with the Washington State Bar Association (wsba.org).
The information on this page is for general guidance only and does not constitute legal, tax, or financial advice. Please consult a licensed Washington State probate attorney for guidance specific to your situation.