Formal probate filed with the superior court is not always necessary. In Washington, if the person had less than $100,000 in assets and no real property (houses and land), an appropriate person can claim assets using the small estate procedure under RCW 11.62. If the estate has more assets or if those assets include real estate, then probate is necessary so that a person has legal authority to transfer assets into the names of the heirs. If the estate has no assets or is insolvent (its debts exceed its assets), consult with an attorney to discuss the advantages and disadvantages of opening a probate.

Unless the spouses created a community property agreement while married, probate is still often necessary to transfer assets to the surviving spouse. Title to the family home, for example, is commonly held in the names of both spouses as tenants in common. Even if the home is community property, title to the home still doesn’t automatically vest in the name of the spouse without recording a deed. Probate in this circumstance will often be very simple, but you should still talk to an attorney about the details to avoid problems down the road when the second spouse has also passed away. If the deceased spouse had any separate property, there are additional issues that should be discussed.

There is a popular perception that probate should be avoided because the assets are tied up for years and the lawyers end up getting it all anyway. This simply is not true in Washington. Probate attorney’s fees in Washington are simply based on the amount of time spent (other states allow attorneys to charge a percentage of the total value of the estate). In most cases, probate is done without court intervention, meaning that the court only gets involved to appoint a personal representative and if there is a dispute. A probate is often open for several months before it is complete (due to a 4-month creditor claim procedure that is usually used) but in the right circumstances preliminary distributions can be made before everything is complete. Of course, where there are disputes among the heirs or other problems with the probate, attorney’s fees will increase, but these issues are not the rule.

Some kinds of property pass automatically to a designated beneficiary. This is called non- probate property. It includes such things as life insurance proceeds or retirement accounts with a named beneficiary. Property held with rights of survivorship can also pass outside of probate. Otherwise, most property is transferred from the estate to the heirs by a personal representative appointed by the court through the probate process.

Death does not change who is liable on a debt. In other words, if the deceased person was the only one liable for the debt before he or she passed away, then his or her estate is the only entity liable to repay the debt after death. Some unscrupulous debt collectors will try to intimidate family members into paying debts from their own funds by suggesting that the family is somehow liable to pay everything the decedent owed. Talk to an attorney if someone is trying to get you to pay a debt incurred by your family
member.

Under Washington law, buying and selling real estate is very much a “buyer beware” scenario. It is difficult for a buyer to have effective legal recourse against a seller for defects discovered after the sale is complete. This underscores the importance of having good inspections and contracts before the sale is closed. If you’re in the position of discovering something that wasn’t properly disclosed, talk to an attorney about the details. If there is evidence the seller knew of the defect and failed to disclose it (or concealed it), there could be a claim for fraud (or fraudulent concealment) against the seller.

RCW 59.12.030 describes the reasons a tenant can be evicted and the notice that is required.

The most common reasons are:

• The Landlord can give a 3-day notice to pay or vacate if the tenant fails to pay rent when

due.

• The Landlord can give a 3-day notice to quit for committing waste, conducting an

unlawful business, or permitting a legal nuisance. (Note that a nuisance under the law

is more than just being annoying. It is an unreasonable or unwarranted interference

with another’s rights to use and enjoy property. It can be hard to pin down exactly what

constitutes a legal nuisance. You should talk to an attorney if you want to give or you

have received this kind of notice.)

• The Landlord can give a 10-day notice to cure or vacate for a breach of the lease other

than paying rent.

• The Landlord can give a 20-day notice (effective at the end of a lease period) to

terminate a month-to-month tenancy.

The first step is to form an entity (usually LLC or corporation) with the Secretary of State. Skipping this step generally means that you are a sole proprietorship or partnership and the owners of the business will be personally on the hook for any liabilities of the business. Once the entity is formed, you would file the Master Business License application with the Business Licensing Service. Depending on what city you operate in, you may also need a city business license. In most cases, the business will also need to apply for an EIN from the IRS. The next steps will depend on your specific situation, but they include things like ensuring that you have the capital to run the business, obtaining other required permits or licenses, signing a lease, and hiring employees.

The question of LLC v. corporation is resolved by considering how you want your business to be managed and taxed.

Corporations are owned by shareholders who elect directors who appoint officers who run the company. Corporations are required to have annual meetings of shareholders and directors (at least). On the other hand, LLCs are flexible. An LLC can be managed by the members or it can be managed by one or more managers appointed by the members. Often, the flexibility of an LLC is an advantage to small business owners. Corporations must file a tax return with the IRS. Corporations can be taxed under subchapter c or under subchapter s. A c-corp pays corporate-level tax in its income and the shareholders pay individual tax on their share of the profits. An s-corp avoids the corporate-level tax but there are restrictions on who can be the shareholder of an s-corp. LLCs by default are taxed as a partnership or sole proprietorship. This has the advantage of simplicity—tax returns for these entities are usually easier to prepare. LLCs also have the option of electing to be taxed as a corporation (either a c-corp or an s-corp) by filing forms with the IRS. Again, the flexibility that is available to an LLC in terms of taxation is often an advantage. Talk to your tax professional

about the details of your situation.

Note that both LLCs and corporations are a legal entity separate from the owner and the owners

of each kind of entity are generally not personally responsible to pay the debts of the business.

Covenants not to compete are enforceable in Washington as long as the restrictions are not more onerous than is necessary to reasonably protect the legitimate business interests of the employer. Another important factor in enforceability of such a covenant is consideration—the employee must receive something of value in exchange for the covenant not to compete. If the covenant is a condition of employment when the employee is first hired, this may already be satisfied. If the employer wishes to impose the covenant on existing employees, some additional consideration is often required.

A “living trust” is an instrument that can designate how your property should be distributed after you die. If done correctly and if properly maintained, a trust can avoid the need to open a probate when you pass away because your property will pass by the terms of the trust. However, creating a trust and ensuring that it is properly funded is more
expensive than simply creating a will. Because probate in Washington is relatively uncomplicated and inexpensive, in many cases there is no compelling reason that it needs to be avoided. You should talk to an attorney about the details before you create a trust to make sure that it is a good idea in your situation.

A power of attorney is an instrument by which you can appoint someone to take care of things in your place. A durable power of attorney is one that continues to be effective even if the principal becomes incapacitated. A durable power of attorney is often used to make sure that a family member is able to take care of things in the event you become unable to handle your own affairs. Note that any power of attorney ceases to be effective when the principal passes away. In other words, the durable power of attorney is for handling affairs while you are alive. A will is for handling matters after you die.

A living will is also sometimes called a health care directive or a directive to physicians. This document is a place for you to specify your wishes regarding continuing life support and other medical treatment in the event you are diagnosed with a terminal illness or a degenerative disease or if you are in a permanent unconscious state.