Protecting Your Rights as an Heir or Beneficiary

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WA-Probate > Probate-Litigation > Introduction


A.  Introduction: This Section Focuses on Heirs' and Beneficiaries' Rights



The primary focus of the WASHINGTON PROBATE website is on:

Decedent's Personal Representative is the active "driver" of the estate.  Decedent's heirs or beneficiaries are its passive "passengers."  The primary focus on this WASHINGTON PROBATE LITIGATION website is on Decedent's heirs' and beneficiaries' rights, particularly as against Decedent's Personal Representative.


Some issues for your consideration regarding probate litigation:


1.  The Best and Most Capable Person of Ensuring that You Receive Everything that You Are Entitled to Receive Is You.  The Decedent is dead.  The Personal Representative is pursuing his/her own efforts to administer the estate.  The Personal Representative's lawyer, if there is one, is there to serve the Personal Representative.  The Court largely assumes that so long as an adult party has received any required notice, if that party doesn't appear in the proceedings or at the relevant hearing, they must be happy with things as they are and as the Personal Representative proposes.  This leaves you, as an heir or beneficiary, with the responsibility of taking care of yourself and ensuring that whatever rights you have are preserved and protected.


2.  The Purpose of This Website.  As an heir or beneficiary:

3.  Information Is Power.  By providing some basic information to you as an heir or beneficiary, WASHINGTON PROBATE and PROBATE LITIGATION hope to empower you towards getting what you are legitimately entitled to --- and also towards reinforcing the position that the legal process can and does work in general, and can and will work for you in probate.


4.  This Website Assumes Some Familiarity with Probate.  This PROBATE LITIGATION website was not written as "Probate 101: Introduction to Probate" but assumes basic familiarity with the probate process.  Such familiarity may be gained, for example, through review of the section of the WASHINGTON PROBATE website entitled Washington Probate Instructions, and particularly its parts entitled Opening, Administering, and Closing the Probate Estate.  Also, familiarity with unfamiliar words or phrases may be gleaned from the Estate Planning & Probate Glossary.


5.  The Role of the Court in Probate Administration.  The thrust of the WASHINGTON PROBATE website is "How to Probate a Washington Decedent's Estate."  Technically, this is known as "estate or probate administration."  How to do it is relatively easy --- finding the relevant statutes and following them.  Procedurally, what's required by the statutes is relatively easy to put into standard forms, and then the forms need to be filled out and filed with the Court.  While estate administration does involve some Court interaction, that interaction is merely of the nature for getting the Judge's approval, and as long as the forms follow the statute and are filled out correctly, a Judge is likely to say "Yes."


6.  Probate Litigation Requires Custom Forms. In shifting to this PROBATE LITIGATION website, the situation changes.  The issue is now a matter of differences of opinion among the parties.  While all the parties are looking at the same facts and circumstances, one party sees one thing, believes it is important, and comes to one conclusion; another party concentrates on another thing, believes something else is more important, and arrives at a conflicting conclusion.  Usually the other party will be the Personal Representative, but it may be someone else who has another interest in the estate, such as another heir or beneficiary, or someone entirely new, such as somebody claiming title to property in the estate or a creditor.  This is not probate administration but probate litigation, and for this, there is no standard set of forms, and only a few of the more typical probate litigation forms are provided on this website, and even those will likely require more customization than those in the Probate Instructions (ie, administration) section.


7.  The Role of the Court in Probate Litigation.  Furthermore, in probate litigation, the Court becomes engaged not as an overseer on behalf of society (in some sense, like a "Godfather" of the community) in its administrative, "approval" function but, instead, as a "referee and judge" in a litigious, dispute resolution function.  In this capacity, it must necessarily forego providing assistance to an unopposed party during the time the Court is acting in its administrative, "approval" function and become truly neutral and objective while it has opposing parties before it and is acting in its litigious, "dispute resolution" function.  In other words, if you come before the Court and ask for its assistance in resolving a dispute with an opposing party, you are on your own and solely responsible for your presentation and the results of the process --- you cannot expect the Court to assist you --- other than by its playing its own role, as a neutral and objective "referee and judge."


8.  Legal Assistance Can Be Especially Helpful in Probate Litigation.  Unlike in probate administration, in probate litigation "do it yourself" lawyering has little potential for success.  Legal assistance can make a substantial difference.  If you want to take any action as an heir or beneficiary, WASHINGTON PROBATE strongly encourages you to obtain a second opinion before proceeding, to ensure that you are proceeding on solid ground and in a way that offers substantial likelihood for you to obtain what it is that you want.


9.  Some Inherent Problems with Probate Litigation.  You should be aware of some of the problems inherent in probate litigation:

  1. Burden of Proof.  By being the party asking for a change in the present situation, you will have the burden of convincing the Court that you are right and your opponent is wrong.  Consequently, all your opponent has to do is wait for you to fail to make your case, to make a mistake, etc., and they will have won.

  2. Standard of Proof.  In most cases, you will have to convince the Court "by clear, cogent, and convincing evidence" --- that there is no reasonable explanation for the circumstances other than the one you propose.  While this is a lesser standard than the "beyond a reasonable doubt" standard required for a criminal conviction, it is a more demanding standard than the "preponderance of the evidence" ("more likely than not") standard in most civil Court actions.

  3. Most Cases Turn on the Facts, not the Law.  Most cases in probate litigation concern not "what the law says" but "what are the relevant facts?"  For example:

    1. Is the nominated Personal Representative qualified to serve?

    2. Is the offered Will valid?

    3. Has the Personal Representative been negligent or worse?

    4. Is the Personal Representative's Accounting accurate?

    5. Are the Personal Representative's proposed fees reasonable?

    Cases based on "what are the relevant facts?" often take a lot of time to prepare, largely as a result of having to discover "just what are the relevant facts?", and can become very expensive very quickly.

  4. "Double" Risk of Loss.  In most cases brought by an heir or beneficiary, they risk not only losing the case itself but also being charged for the Personal Representative's attorney's fees and Court costs involved in successfully defending the case.

10.  Cases Often Settle.  In light of the burdens and costs of going forward, the parties often reach a compromise that all can "live with."




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