Frequently Asked Questions

What Happens If I Die Without a Will?

If a person dies without a valid will a probate case is usually required to retitle that person’s probate assets to his/her legal heirs. However, if the decedent left a “small estate”, i.e., owned no real property but only personal property worth less than $100,000, then probate can be avoided by using the small estate affidavit procedure. A probate would also be avoided if the 100% of decedent’s assets consisted of “nonprobate assets” as explained below.

For more details on probate and the difference between probate and nonprobate assets, read here.

The laws of intestate succession dictate how one’s “probate assets” will be distributed on death. These laws basically operate as a will substitute because they determine which of decedent's surviving heirs inherit from the estate, plus the size of any such inheritance. This is based on the number of surviving heirs and their relationship to the decedent.

For example, if the decedent was married at death but left no children, the surviving spouse would get 100% of the probate estate. If the decedent was married but left children, the surviving spouse would take all community property plus get ½ of decedent’s separate property (surviving children get the other ½). If one dies without a surviving spouse (or registered domestic partner) and without children, any surviving parents will inherit, and if there are no surviving parents, then equally to surviving siblings. The state will only inherit property if a person dies without legal heirs.

You must note however, that the laws of intestate succession described above only address how your probate assets will be distributed. If you left “nonprobate assets”, your nonprobate assets will be distributed according to your beneficiary designations. Nonprobate assets are assets that will pass on your death pursuant to a written instrument other than your will.

Examples include:

  • IRA or brokerage account;

  • Property held in trust;

  • Property held as joint tenants with the right of survivorship;

  • Accounts that are transferrable or payable on death of the owner;

  • Property that passes under a community property agreement.

So, it is entirely possible that an estate may include all nonprobate assets. In that case, it wouldn’t matter if the decedent left a valid last will, as each of these nonprobate assets will pass automatically outside the will and without the need to open a probate case.

More details on what happens when you die without a will can be found here.

Can I Disinherit My Children?

Yes. There is no requirement that a person must provide an inheritance to any of his/her children. A disinheritance can be done by identifying the child and failing to make any provision for him/her under the will (although specific language of disinheritance and an explanation from the testator is advisable).

If the will fails to identify the child, fails to make a provision for such child, and lacks any language of disinheritance, then such an omission will be presumed an accident on the testator’s part. In this case, the child will be deemed an “omitted child,” and thus inherit under the laws of intestate succession (as if the testator left no will). An example of an omitted child would be a child born or adopted after the drafting of the will. Therefore, if the omission is intentional and you wish to avoid future litigation involving your estate, make sure to identify the child and clarify that the omission is intentional. This will uphold your decision from a legal perspective. Again, it’s wise to couple that language with a disarming explanation of the reason for such disinheritance.

Can I Disinherit My Spouse?

Yes, the rules for effecting an intentional disinheritance are the same as for disinheriting a child. However, understand that Washington is a community property state (generally, all assets acquired during marriage are community assets). Each spouse is entitled to ½ of community property. A person cannot give away, as part of his/her estate plan, the other spouse’s share of community property. So, a disinheritance as to a spouse can only be effective as to the testator’s 1) separate property and 2) ½ interest in community property.

Washington state does not allow for a disinherited spouse to claim an elective share. Instead, a disinherited surviving spouse may be entitled to a modest award (called an allowance) from decedent’s community property and/or separate property.

What If My Kids are Minors or Irresponsible With Money? What Should I Do With Their Inheritance?

You have two options. The first is to create a trust (it offers more flexibility) that provides for your beneficiaries to receive distributions when you feel the time is right. Distributions can be from principal (the assets in the trust), income (the income generated from trust assets, such as rental property income if the trust includes rental property), or both. The distributions can be staggered, for example, 25% at age 21, another 25% at age 25, and so on. The distributions may be for a specific purpose, such as education, healthcare, to buy a first home, etc. The point is that you, the trustor, are the rule maker when it comes to when, how much, and for what reason your beneficiary is to receive a distribution from the trust.

Moreover, the trust can be, and typically is, revocable. This means it can be altered or terminated at any time in order to account for change in life circumstances. For example, say one of your fiscally responsible children marries someone you don’t consider a good match for a number of reasons, including poor spending habits and you don’t want your child’s inheritance to get squandered by that spouse. A trust can be drafted to address that issue.

The second alternative is to transfer the assets to a custodian pursuant to the Uniform Transfer to Minors Act (“UTMA”). Under the UTMA, a minor is anyone who has not reached the age of 25. This means a person can utilize UTMA transfers for adult children provided such adult child is under 25.

The UTMA is an effective, cheaper alternative to the trust. Assets transferred pursuant to the UTMA are considered “custodial property”. Custodial property is transferred to the “custodian” under the UTMA for the benefit of the minor child. The custodian of custodial property under the UTMA is akin to a trustee of a trust. Fiduciary duties are imposed on the custodian to act in the child’s best interests with respect to custodial property much like a trustee administering a trust.

Details on transfers to minors using a revocable trust or UTMA accounts can be found here.

I Don't Want Anyone To Challenge My Will. What Should I Do?

There is no absolute way to keep one of your heirs from contesting your will. The best way to keep this from happening is to

1) ensure the will is executed properly so it will be admitted for probate upon your death; and

2) make clear you possessed sound mind and were not unduly influenced in drafting your will.

Details on what makes a valid will can be found here.

Generally, the probate court will admit a last will and testament if it is signed by the will drafter and by two adult, disinterested witnesses. It is strongly advisable to include a self-proving will affidavit to preclude evidentiary obstacles that may be presented when the time comes to probate the will (e.g., perhaps one of the will witnesses has died or cannot be located). Self-proving will affidavits must be executed in accordance with the applicable Washington statutes. This link describes those requirements.

If you are afraid one of your heirs will challenge your will because it includes a disinheritance provision as to that heir, ensure such disinheritance provision is valid. If a disinheritcance is not done properly, it could be deemed an accident, in which case the heir you sought to disinherit could receive the inheritance he/she would have received if you did not create a will.

In addition to the requirements for a valid will, the testator must have had a sound mind and was not "unduly influenced" when he/she drafted the will. If you suspect your will could be challenged based on perceived questions in mental capacity, consider getting a note from your doctor speaking towards your sufficient mental capacity (perhaps after your doctor performed cognitive or similar test on you). You may also consider a brief videotaped interview during your will signing.

Can't I Just Buy a Will or Trust Over the Internet?

I strongly advise against it. First, the will software cannot oversee the execution phase or otherwise ensure your will was signed correctly. Defective will signings are too common. I have seen wills signed by the testator but lacking any witness signature. I recently saw a will that had only been notarized (no witness signatures) even though it had spaces for witness signatures. There’s no requirement that a will be notarized (only the self-proving will affidavit). Procedural requirments for trusts must also be strictly adhered to. For example, if you bought a trust package, that trust is worthless if it was not funded properly, i.e., assets were properly transferred to the trust.

Moreover, every circumstance is unique. There is no one-size fits all with estate planning. Cookie cutter wills or trusts may not address unique issues that your circumstance may pose. And, how do you know you weren’t oversold? Often clients come to me convinced they need a trust when in fact they do not. Buying stuff online bypasses the attorney consultation stage where the correct estate planning strategy can be crafted. Mistakes during the estate planning phase can be financially and emotionally costly to your loved ones when you die.

I Had a Will Prepared in Another State. Do I Need to Redo It Once I Move to Washington?

No, provided such will was executed in accordance with the laws of the jurisdiction where you resided when the will was executed. Such a will is deemed a “foreign will”. But one issue here would be whether you continue to own real property outside Washington. If you own real property outside Washington state when you die, an ancillary probate proceeding may need to be commenced in that jurisdiction in order to retitle the property. This will depend on how that property is titled. One solution is to transfer any real property located outside Washington into a trust along with all other assets. Doing so would avoid likely avoid the need for probate altogether.

Will My Heirs Face Estate Taxes When I Die?

This depends on the value of your estate, which in turn, looks at how assets are titled in order to calculate the size of your taxable estate. Certain strategies may exist to deal with any anticipated estate taxes.

For Washington residents, there are potentially 2 types of estate taxes that apply: federal estate taxes and Washington state estate taxes. I have separate blog posts that address each type of estate tax which go into detail regaring how such taxes are calculated in order to assess whether your estate may be required to file an estate tax return or pay estate taxes.

For the post regarding Federal estate taxes read here.

For the post regarding Washington State estate taxes read here.

FEDERAL TAXES. Until December 31, 2025, each individual holds a federal estate and gift tax exemption in the basic amount of $10,000,000. This is adjusted annually for inflation. As of 2021, the exemption amount is $11.7 million. Therefore, unless you have a very large estate it is unlikely your estate will owe federal estate taxes. It is expected this basic exclusion amount will expire and not be renewed at the end of 2025, in which case it would revert to the basic exclusion amount of $5,000,000.

STATE TAXES. As of 2021, Washington state imposes an estate tax on taxable estates over $2,193,000. Your estate includes all personal and real property, including property held in a revocable trust, retirement accounts, and certain life insurance policies.

How Should I Store My Estate Planning Documents?

One option is to store the originals in a safe at your home. Notify your nominated executor and legal guardian for your minor children. Tell them you have nominated them as such and give them instructions on how to access the safe.

Another option is to file the original will with county clerk’s office’s will repository. Instructions for doing so with the King County Clerk can be found here. The cost is $20.

Originals are required. If your executor cannot locate the original will then the court may presume you did not have a valid last will and testament. It will be expensive and time consuming for your executor and heirs to attempt to prove to the probate court your last wishes. A photocopy of your will is not a valid will.

If you lose the documents or the documents are destroyed, contact our office to ensure replacement documents are executed.

For more details on this subject read here.

What Are Some of the Reasons for Creating a Trust?

There are many important reasons for created a trust as part of your estate plan. Some of the most common reasons include:

  1. Probate avoidance. Spare your loved ones the time and expense of the probate process.
  2. Ancillary probate avoidance. If you own real estate outside Washington you’ll likely need to open probate in that state to retitle the property. This second probate is referred to as an ancillary probate.
  3. Potentially reduce or eliminate estate taxes. For example, married couples with assets putting them in the “zone” of Washington’s estate tax of $2.193 million should strongly consider a credit shelter trust to maximize each spouse’s exemption amount of $2.193 million (this includes all real and personal assets, including certain life insurance policies, real estate and business interests). Unlike with federal estate taxes, Washington state does not allow for “portability”. Portability involves the surviving spouse using (or porting) the decedent spouse’s exemption amount that was unused by that individual’s estate.
  4. Transfer Assets to Minors or Immature Heirs. A trust offers a solid, flexible solution to transfer assts to minors (minors cannot receive property via inheritance) as well as immature or fiscally irresponsible heirs. Having a trust manage such inheritance per the rules you create and under the terms you define when creating the trust can preserve family assets (e.g., the heir may receive income or assets for health, education or maintenance needs).
  5. Preserve Assets For Your Blood Line Heirs in a Blended Family. Similarly, a trust can be a good vehicle to make sure your children are protected, and your inheritance is not squandered if your spouse remarries unwisely.
  6. Protect from Creditors. Trusts can include spendthrift clauses that can protect trust assets from being transferred to creditors of your beneficiaries.
  7. Medicaid Planning. Trusts can be used as part of your long-term care and Medicaid planning strategy.
  8. For Children with Special Needs. A trust, often referred to as a special needs trust, can be created for the benefit of children with special needs. A special needs trust must be designed so that the special needs child benefits from assets of the trust, but at the same time those trust assets are not counted for purposes of qualifying for public assistance.
  9. Privacy. A trust avoids making your assets and liabilities a public record. One of the duties imposed on your executor as part of probate is to create an inventory of all your assets and debts as of the date of your passing. This could potentially be filed with the probate court which and accessible to the public.

What is a Trust?

A trust is a distinct legal entity that holds assets for the benefit of certain individuals. There are 3 parties involved with any trust: 1) the trustor; 2) the trustee and 3) the beneficiary. The trustor is the person who created the trust. The trustee is the person who holds legal title to trust assets, who is charged with the legal and fiduciary obligation to manage trust assets for beneficiaries pursuant to the trust rules set by the trustor when the trustor created the trust. The beneficiaries are the ones who ultimately receive the benefit of trust assets. The trustor is typically the beneficiary of the trust during the trustor’s lifetime. Trusts must be funded in order to achieve any purpose of the trustor. Funding a trust means transferring assets to the trust. Trusts that are created but hold no assets are basically useless (like an LLC that was created but conducts no business operations, has no employees and holds no assets).