‘Ending Probates for Profit’: A Cannon to Kill a Mosquito

What Washington practitioners need to know about the significant new revisions to Title 11

LEARN MORE > If you are interested in more on this topic, an online CLE jointly presented by the WSBA Elder Law Section and the Washington Academy of Elder Law Attorneys (WAELA) is taking place Sept. 25, 2026. Both the author of this article and a King County commissioner will be presenting. For more information, click here.

BY BRENT WILLIAMS-RUTH

If you are not familiar with estate planning or estate administration, you may be wondering what “probates for profit” are and what it means to end them. In simple terms, the phrase refers to situations in which unrelated third parties obtain authority to administer the estates of people who die without a will and then personally profit from the sale or disposition of estate assets. Washington’s existing probate laws left room for that authority to be abused, sometimes at significant cost to the decedent’s heirs.

In June, the Legislature sought to address that problem by enacting Engrossed House Bill (EHB) 2445, “Ending Probates for Profit.” The new law makes significant changes to Washington probate law, particularly for intestate estates (without wills) and those seeking appointment to administer them. The goal of this article is to help lawyers understand this fundamental shift in the estate administration landscape and, most importantly, how they can help clients avoid some of the pitfalls, costs, and delays that can arise when someone dies intestate. 

One important point to note, many practitioners (myself included) argue that this new law goes too far, likely making some estate administration processes unnecessarily more complicated and time-consuming for attorneys and their clients. As one of the people involved in shaping this legislation, I set out to help craft this law into a fine scalpel to fix a problem. However, I believe we have instead created a cannon to kill a mosquito. I can only hope (as I know others do as well) that the Legislature will take up revisions to the law in future sessions. 

HOW WE GOT HERE

Due to limited space, I will summarize how we got here: A bad man (John B. Elliott) and his band of merry bad people (Shanelle Sunde and Sunde and Elliott’s companies) administered over 200 estates, selling at least 90 homes and swindling unknowing families out of their inheritances.¹1 See the AG’s press release at: www.atg.wa.gov/news/news-releases/washington-holds-probates-profit-defendants-accountable.

Washington’s attorney general believed that existing laws may have helped facilitate the actions of these individuals and that if various reforms were enacted, this type of scheme could be prevented from occurring in the future. The original bill drafted by the attorneys in the Consumer Protection Division of the Attorney General’s Office was shared with various interested parties. The first draft of the proposed bill was summarily rejected by all who understand the estate administration process. One person likened the proposal to a new heart valve replacement process created by podiatrists. The subsequent bill proposed to the Legislature was by no means perfect, but many of the requested changes had been implemented. EHB 2445 passed the Legislature, was signed by the governor, and was enacted on June 11, 2026. The bill itself was 27 pages long and included 15 separate sections of modifications, revisions, and/or additions to existing statutory language. This article cannot address every change. 

Many practitioners are worried about inconsistent applications and unintended consequences already being reported across different counties. The bill has been in effect for only 10 weeks as of this writing, but some of its practical effects are already becoming clear.

(Mostly) Business as Usual: Testate Estates

Much to the delight of the attorneys and others who advised the AGO and the Legislature, not much has changed for testate estates (estates with a will).  Mainly, this is because even wills created through free online resources commonly include a provision allowing the court to grant nonintervention powers (NIP), which permit a personal representative to manage an estate without court supervision. Furthermore, if the testamentary document does not request but also does not prohibit NIP, a court can grant it upon request.

One minor change to note is that “Interested Person/Person Interested” has been added as a defined term to RCW 11.02.005(10).²2 RCW 11.02.005(10) defines these terms as “an heir, devisee, beneficiary, legatee, or creditor whose claim has been duly served and filed, or an attorney or fiduciary for the same.” Small victories! 

Significant Changes: Intestate Estates

Nearly every intestate estate going forward will be affected, at least in part, because the Legislature used EHB 2445 to implement standard code revision and integration, or “code reconciliation.” Practitioners should review their intestacy forms and verify the current statutory location of any referenced section or subsection. 

One important result of these revisions is the delineation of rights and duties for those appointed to administer an estate under RCW 11.28.120(1)-(3). These appointees are being called Sub-1, Sub-2, and Sub-3 petitioners. Sub-1 petitioners are divided into further sub-parts (a) through (f). Examples of a Sub-1(a) petitioner are a surviving spouse or a state registered domestic partner. An example of a Sub-1(b) petitioner is next of kin (limited to child, parent, sibling, grandchild, and nephew or niece of the decedent). A Sub-2 petitioner can be a contract service provider with the office of public guardianship and conservatorship under chapter 2.72 RCW or a guardian ad litem. A Sub-3 petitioner is “any suitable person.” 

Limited Changes: Sub-1 Petitioners

If you have an estate with a Sub-1 petitioner, you can rest a little easier knowing that, comparatively, not much has changed. One change is that the petition must now also include the basis upon which the petitioner is declaring that the decedent passed without a will. RCW 11.28.110(1)(b). Though these petitioners need not list out the major probate assets, they are still required to detail the reasonable search for assets. RCW 11.28.110(3). The petition must also state that they are entitled to serve as the administrator under RCW 11.28.120 and have not been specifically excluded from being able to serve as set forth in RCW 11.36.010. RCW 11.28.110(1)(e).

A New Complication: Consent and Waiver

Many practitioners have used “consent and waiver” documents signed by family members to allow another person to serve as executor or administrator with NIP and without posting bond. Though the language of the statute did not change, the recodification has drawn attention to the fact that the power to nominate someone to serve as executor or administrator rests only with the surviving spouse or registered domestic partner, or Sub-1(a) petitioner. Already there have been reports of courts refusing to allow an attorney to serve as executor of an estate without bond and with NIP even though all identified family members have signed a consent and waiver to allow them to serve. Under the statute, only a Sub-1(a) petitioner has the power to designate someone else to serve.

This will likely be among the first revisions considered for EHB 2445, as many practitioners argue that Sub-1(b) petitioners have the same need as Sub-1(a) petitioners to nominate someone to serve in their stead.  

Substantial Changes: Sub-3 Petitioners

The changes become much more substantial for Sub-3 petitioners. The focus of EHB 2445 was the “suitable person” catch-all. With the code reconciliation, this catch-all is now codified as RCW 11.28.120(3). Under the new law, a petition may not be filed until at least 90 days have passed since the date of death. In counties where you need to book advanced notice, the new language suggests that you cannot even file a petition to hold a date for a hearing, as the statute specifically states, “If the persons entitled as set forth in this section shall fail for more than 90 days after the death of the decedent to present a petition for letters of administration… .” This would indicate that part of the petition has to include the statement that 90 days have elapsed since the date of death and no eligible person has presented a petition to the court. A separate issue already seeing varied application is whether advance notice of a hearing is required. Under RCW 11.28.131, a petition may be heard “forthwith” provided that notice is given to the surviving spouse, domestic partner, or their designated representative. However, reportedly not all judicial officers agree with this interpretation and some have denied requests for lack of notice to other heirs even though there is no surviving spouse or domestic partner. Notice of hearing on petition is only required when a petitioner is seeking appointment with NIP.  Because a Sub-3 petitioner is prohibited from requesting NIP, their hearings should be allowed without advance notice. 

As referenced above, the intestate petition must include a basis of the petitioner’s knowledge that the decedent died without a will. The petition must also include the names, ages, and addresses of the decedent’s heirs, and the petitioner’s reasonable search for those heirs. Under the new law, there must also be a general description of all major probate assets of the estate, including real property, motor vehicles, and any known property or interest estimated in good faith to exceed $10,000 in value, and the petitioner’s reasonable search to identify such assets. The petition must also include the specific value, location, provenance, and condition of each major asset to help determine the value of the bond.

RCW 11.48.020 also establishes that a Sub-3 executor may not (a) purchase or acquire any estate asset or (b) personally benefit from the sale of an estate asset. If a Sub-3 executor wants to personally benefit, they are required to obtain the blessing of the court through a hearing with at least 14 days’ notice to all heirs, devisees, legatees, beneficiaries, and transferees. The law states that “the petition shall be denied unless the executor establishes clearly and convincingly that the requested purchase, acquisition, or receipt is consistent with their duty of loyalty and all applicable laws, and would not be voidable by any heir, legatee, devisee, beneficiary, or transferee of the estate.” (Emphasis added.) RCW 11.48.020(2). An executor who violates or attempts to violate (a) or (b) of this subsection may be sanctioned by the court up to three times the value of the relevant asset or proceeds, in addition to any other sanction or remedy. RCW 11.48.020(2).

Three New Restrictions for Sub-3 Petitioners 

In addition to these changes, EHB 2445 imposes three restrictions on Sub-3 petitioners that will directly affect the overall time and cost of administering an estate.

First, a Sub-3 petitioner, that is not otherwise exempt pursuant to RCW 11.36.010(2) or (3), is prohibited from obtaining NIP. RCW 11.68.011 creates a double prohibition: A nonexempt Sub-3 petitioner may not ask the court for NIP, and the court may not grant it. 

Second, all Sub-3 petitioners are required to post bond. If a Sub-3 petitioner is not exempt by RCW 11.36.010(2) or (3), the statute states that in all cases bond shall be required in an amount commensurate with the major probate assets contained within the petition.

Third, revisions to RCW 11.96A.050 now state that any Sub-3 petitioner that is not otherwise exempt must file the petition to probate in the county where the decedent resided at the time of death. If the decedent was not a Washington resident, the petitioner must file in the county in which any part of the probate estate might be. Prior to EHB 2445, it was a major benefit for attorneys to be able to file a probate in any county in Washington. This helped compensate for areas known as legal deserts, where there are fewer attorneys.

A New Limit on Appointments

In the Elliott Scheme, Elliott and his colleagues were appointed as executors or administrators (or were the de facto managers) of 213 probates filed around Washington state. Under the newly enacted provision of RCW 11.28.120(3), unless the petitioner is an exempt entity detailed in RCW 11.36.010(2) or (3), there is a cap of two appointments under this subsection per year.  There are no exceptions other than those detailed by RCW 11.36.010(2) and (3). This has caused some concern among those who practice in the professional guardianship or personal injury spaces, as those practitioners frequently have reason to be appointed and are not presently exempt from the new limitations and prohibitions. I anticipate that this will be another nuance that will be ironed out in future legislative sessions. 

Three Reporting Requirements

EHB 2445 also identifies three reporting requirements for estates administered without NIP. Each of these requirements is codified under RCW 11.76.010, so only probates that have not been granted NIP are subject to these reports. This could become an area that is amended through subsequent legislation or could become the subject of a case on appeal. Right now, colleagues are focusing on RCW 11.68.090(2)(b) which states as follows: 

Except as otherwise provided in this chapter, a personal representative with nonintervention powers has the same duties, restrictions, and liabilities as a personal representative without nonintervention powers and shall act for the benefit of all persons interested in the estate, as defined in RCW 11.96A.030(6) relative to a decedent’s estate, except that:

…

(b) A personal representative with nonintervention powers has no duty to follow the procedures of RCW 11.76.010 through 11.76.080 or chapter 11.56 RCW.

RCW 11.68.090(2)(b) (emphasis added). 

Each of the mandatory filings is detailed below:

Filing 1: Declaration Confirming Notice to Third Parties. For those estates that are being administered without NIP, the first new filing is set forth by RCW 11.76.010(1), which requires that not later than 30 days after appointment, the personal representative provide confirmation of notices to third parties (heirs, devisees, legatees, beneficiaries, and transferees) as well as the details of the personal representative’s search to identify such persons, and the date and manner in which notice was provided. The statute has a template form that shall be “substantially in the following form.”

Filing 2: Declaration Regarding Estate Financial Account. The second new filing is set forth in RCW 11.76.010(2) and relates to the establishment of financial accounts on behalf of the estate. The statute provides that not later than 30 days after opening any financial account to collect and pay out sums on behalf of the estate, the personal representative shall make, verify by his or her oath, and file with the clerk of the court a report of the estate financial account. The report shall contain the date the account was opened, the financial institution holding the account, and each signatory on the account. Like with the first new filing, the statute provides an exemplar that “shall be substantially in the following form.”

Filing 3: Annual Estate Status Report. The third filing is not new but has been recodified as RCW 11.76.010(3)(a) and relates to the annual status report to be filed with the court. The only change to this report by EHB 2445 is that it should be filed at least annually, by the date of appointment. The rest of the reporting requirement remains the same. 

COURT OVERSIGHT AND ENFORCEMENT

To give these reporting requirements some teeth, RCW 11.76.010(5) establishes procedures and sanctions for addressing noncompliance. 

If an executor fails to comply with any of the reporting requirements set forth in RCW 11.76.010, then the court or any interested party may request that the court hold “a formal proceeding” within 14 days in which the executor “shall appear and provide sworn testimony regarding the facts that would be contained within the report.” The first issue raised by this new section is: What is a “formal proceeding”? This is not a defined term, and depending on the county, the judicial officer that handles probate matters may not be set up to take live testimony.  Therefore, could an executor “appear and provide sworn testimony” via an affidavit? It is unknown how this will be practically implemented, especially in larger counties. 

The new provision in RCW 11.76.010(5) continues by stating that an executor’s “failure to appear at the formal proceeding, failure to testify truthfully and completely at the formal proceeding, or repeated failure to timely file a report under this section, shall result in the court taking any action it deems just and proper to protect estate assets and rights of interested persons… .” (Emphasis added.) The available remedies outlined in the statute include, but are not limited to, imposition of sanctions against the executor and revocation of the executor’s letters. Once there has been a finding, the executor or the court shall provide a copy of the court’s order to each known heir, legatee, devisee, beneficiary, and transferee of the estate.

LOOKING AHEAD

Some say that the Probate for Profit law is one of the largest single updates to Title 11 since 1999 when the TEDRA statute (RCW 11.96A) was first enacted. What is certain is that these changes will impact every probate filing going forward. As noted previously, there are already multiple requests for revisions and amendments as the law’s effects are felt across the state. If and how the Legislature will respond to these requests remains to be seen. 

NOTES

1. See the AG’s press release at: www.atg.wa.gov/news/news-releases/washington-holds-probates-profit-defendants-accountable.

2. RCW 11.02.005(10) defines these terms as “an heir, devisee, beneficiary, legatee, or creditor whose claim has been duly served and filed, or an attorney or fiduciary for the same.”

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