Is an Affidavit for Lack of Probate Right for Me?

What Is the Affidavit of Lack of Probate?

The Affidavit of Lack of Probate is a document confirming that rightful heirs are entitled to property ownership after the property owner's death. Many counties in Washington State recognize this affidavit as a way to clear the decedent’s name from the title, without requiring formal probate. This is especially beneficial when probate is unnecessary or has already occurred in another jurisdiction.

A common scenario involves a Canadian resident who owns property in Washington. If the property owner passes away, the title to the Washington property must be cleared, regardless of any probate that may have taken place in Canada, where the courts lack jurisdiction over Washington property. In these cases, the Affidavit of Lack of Probate can allow heirs to bypass a second “ancillary” probate in Washington.

When the Affidavit of Lack of Probate May Be Useful

The Affidavit can also be effective for Washington residents who own property in-state, especially if their estate is small, they have limited heirs, and there are no creditors involved. In these cases, recording an Affidavit of Lack of Probate may prevent the need for probate altogether.

Additionally, for individuals who didn’t have a trust, joint tenancy, community property agreement, or other non-probate transfer options in place, the affidavit can be a viable route for transferring title.

How the Affidavit Works

Once the affidavit is recorded with the County Auditor, the title of the property vests in the beneficiary named in the decedent’s will, or, if there is no will, the “rightful” heirs as determined by Washington’s Intestacy Statute (RCW 11.04.015). This statute specifies the order of inheritance if a person dies without a will.

Before recording, it’s essential to address any U.S. estate tax obligations. Filing an estate tax return or obtaining a transfer clearance certificate from the IRS may be necessary, along with ensuring compliance with Washington’s estate tax regulations.

Pros of Using the Affidavit of Lack of Probate

1. Avoids Probate: By bypassing the probate process, heirs save time and reduce costs.

2. Titles Property in Washington to Heirs or Beneficiaries: Transfers title to the beneficiary listed in the will or to the legal heir(s) if there is no will.

3. Cost-Effective Alternative: Less expensive than going through an ancillary probate in Washington.

4. Exempt from Washington State Real Estate Excise Tax.

5. Insurance Availability: Many title companies will insure the property interest when the affidavit is recorded.

6. Stepped-Up Basis for Tax Purposes: Heirs receive a full step-up in basis, meaning the property’s fair market value at the date of death can be used for future tax purposes if the property is sold.

   
   

Potential Drawbacks of the Affidavit

1. Not a Deed or Legal Conveyance: The affidavit is not legally equivalent to a deed for transferring title.

2. Not a Judicial Determination: The affidavit is a factual confirmation rather than a court order; it relies on the information provided by the heir(s).

3. Limited Future Warranty Coverage: It may not meet future warranty requirements for a Statutory Warranty Deed.

4. Situations Requiring Probate: Probate may be necessary in cases involving creditors, litigation, unknown heirs, or if the decedent had a safe deposit box.

5. County Limitations: Some Washington counties, such as King County, may not recognize the affidavit as a valid title transfer method.

   
   

Should You Use an Affidavit or File for Probate?

While the Affidavit of Lack of Probate offers an efficient alternative, it’s essential to weigh it against a traditional probate, which is often legally superior. Washington’s probate process is relatively simple and cost-effective compared to states like California, making it a more viable option than in some areas.

In many cases, consulting with a legal professional can provide clarity on which route best suits your situation. With the right approach, you can ensure the estate’s smooth transition, honoring the decedent’s wishes and protecting your inheritance.

If you need effective help in your probate matter, email us at info@knightlegalpllc.com