Frequently Asked Questions:
Do I need a Will? The general answer is yes. A Will allows you to plan how your assets are to be distributed. You also appoint a personal representative who is in charge of collecting your assets, paying any debts you may have, and distributing the balance of your estate in accordance with your Will. Even though some assets will pass directly to a beneficiary, such as a payable on death account, or a life insurance policy, the Will covers all of your remaining assets. You can also appoint a Guardian to take care of any minor children in your Will, and a trustee to handle money for a minor or an incompetent beneficiary.
How do I avoid probate? There are numerous methods of avoiding a probate. One of the most popular is through the use of a revocable trust. A person making a trust, called the Trustor or Settlor, can create a trust during his or her lifetime. The Trustor appoints a Trustee, which can be the same person as the Trustor. The Trustor transfers assets to the Trust to hold in trust. The assets are typically available for The Trustor’s use until death. On death the assets are distributed to the Trustor’s beneficiaries as set forth in the trust. As long as the majority of the Trustor’s assets are held in trust, there will not be a probate.
Who do I select to serve as personal representative under my Will, or under a power of attorney? You want to appoint a personal representative or agent under a power of attorney that is trustworthy, fair, and has the ability to handle your assets. Not all people have children they can trust. In those instances, a professional fiduciary may be appropriate. If you are considering an individual, ask that person if they are willing to serve. Although it is an honor to be asked, some people do not have the time, or would prefer someone outside the family serve as personal representative. Washington law requires that a personal representative be 18 years of age or older, and not have committed a felony or any crime involving moral turpitude, such as theft.
What is probate? This is a court proceeding in which the deceased’s Will is determined to be valid, and a personal representative is appointed to administer the estate. If the estate is solvent, the court can grant the personal representative non-intervention powers. This allows the personal representative to sell property without having to obtain court permission. The personal representative is required to make an inventory of the estate and file closing documents with the court.
How long does probate take? The time varies by estate. Typically a notice to creditors is published in the newspaper which starts a four month time period process in which creditors can file claims against the estate. So at a minimum an estate will take approximately five months. It may take longer if a home or other assets have to be sold.
How much estate tax will my heirs have to pay? Your heirs will only pay estate tax if your estate exceeds a certain dollar amount. Washington allows an exemption of $2,054,000. The federal exemption is $5.43 million. So unless your estate is larger, there may be no estate tax. If your estate is larger there are tax planning strategies to help reduce the tax burden on your heirs. We would be happy to discuss these with you.
Do I have to go to court? You usually do not need to go to bankruptcy court for Chapter 7 bankruptcies. There may be certain situations where going to court is necessary, but generally no. You will also be required to attend what is called a 341 or “Creditors Meeting” where the bankruptcy trustee will go over your case and ask you questions. These 341 meeting generally last 5-10 minutes.
What debts go away? All dischargeable debts are eliminated in a Chapter 7 bankruptcy. Dischargeable debts are those debts that your bankruptcy discharge will wipe away. They include, but are not limited to: credit card debt, medical bills, garnishments, personal loans, utility bills, etc.
What debts don’t go away? There are debts that a Chapter 7 bankruptcy will not eliminate. These are called non-dischargeable debts. Some examples of non-dischargeable debts include: child support obligations; spousal maintenance; most student loans; certain tax obligations…etc.
How long does a Chapter 7 Bankruptcy take? A Chapter 7 bankruptcy typically lasts between 3-4 months. The Creditors Meetings take place about 20-40 days after you file, and then there is a 60 day window after the Creditors Meeting before you receive your discharge.
How do I evict a tenant? In order to evict a tenant you must first serve the tenant with the proper notice as required by the unlawful detainer statute (RCW 59.12). If the tenant fails to follow the terms of the notice, you must file a lawsuit to evict the tenant. At the same time, you must also schedule a court hearing asking the court for a writ of restitution. If you win in court and the writ of restitution is granted, you will need to have the sheriff physically remove the tenant from your property. As a landlord you are not permitted to physically remove the tenant from your property. You are also generally prohibited from locking out a tenant, taking the tenant’s personal property, or intentionally terminating the tenant’s utility service. Landlords are also prohibited from terminating a tenancy or increasing the rent to retaliate against a tenant who asserts his or her rights under RCW 59.18 or reports the landlord for violations of local codes, regulations, or ordinances.
What are my responsibilities as a landlord? Among other landlord responsibilities, under RCW 59.18.060 a landlord must:
Maintain the dwelling so it does not violate state and local laws in ways that endanger the tenants' health and safety.
- Keep shared or common areas reasonably clean and safe.
- Fix damage to the chimney, roof, floors, or any other structural parts of the living space.
- Make a good attempt to get rid of any insect, rodent or other pest problems, except when the tenant causes the problem.
- Make repairs when something breaks in the house, except if the damage is caused by normal wear and tear.
- Provide good locks for the house and gives the tenant keys for these locks.
- Provide the fixtures and appliances necessary to supply heat, electricity and hot and cold water.
- Provide smoke detectors
- Fix electrical, plumbing, heating systems if they break.
- Make repairs needed to make sure the house is weather-tight.
- Set water heaters at 120 degrees when a new tenant moves in.
- Tell the tenant the name and address of the landlord or the landlord's agent.
What terms are I not allowed to put in a rental agreement? RCW 59.18.230 makes it illegal to include certain terms and provisions in a rental agreement. The landlord is prohibited from putting a term that:
Waives any right given to tenants by the Landlord-Tenant Act.
- Makes a tenant give up rights to defend him or herself in court against the landlord.
- Limits the landlord's legal accountability where the landlord would normally be responsible.
- Says the landlord does not have to make repairs.
- Allows the landlord to enter the rental unit without giving you proper notice.
- Requires the tenant to pay for damages the tenant does not commit.