Wills - FAQ

What is a Will?

A last will and testament is a legal document that takes effect only upon your death. It directs how your assets are to be distributed. A valid will can accomplish the following:

  • Name the executor of your estate;

  • Name legal guardians of your minor children;

  • Transfer assets to your beneficiaries, including minor children;

  • create a trust upon your death to hold and manage assets for your heirs. 

What Happens if I Die Without a Will? Will the Government Take My Assets?

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. Read here to understand more about the small estate affidavit. A probate would also be avoided if the 100% of decedent’s assets consisted of “nonprobate assets” as explained below.

 

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 your surviving heirs inherit from your estate, plus the size of any such inheritance. This is based on the number of decedent’s surviving heirs and their relationship to you. 

 

For example, if the decedent was married at death but left no children, the surviving spouse would get 100% of your 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. 

 

Read here an explanation of dying without a will in greater detail.  

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 right of survivorship;

  • Payable on death or transferrable on death accounts;

  • Property passing under a community property agreement.

For a more detailed discussion of probate vs. nonprobate assets read 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. Gain, 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 (or child of decedent in certain circumstances) may be entitled to a the “basic award” (a/k/a family allowance) from decedent’s community property and/or separate property. The basic award is the greater of $125,000 or the county median sales price of a single-family home in the prior calendar year. This award can be increased or decreased at the discretion of the probate court. For more details on the family allowance/basic award read here.

What If My Kids Are Too Young or Financially Irresponsible to Get an 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 the 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 what you believe to be poor spending habits and you don’t want your child’s inheritance to get squandered by the spouse. A trust can be drafted to address that issue. 

 

The second alternative is a transfer to 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 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. 

 

For more detail on UTMA transfers read here.

I Don't Want Anyone To Contest My Will. What Can I Do?

There is no absolute way to keep one of your heirs from contesting your way. The best way to keep this from happening is to 1) ensure the will is executed properly, making it a valid will that 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. 

 

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. 

 

For the requirements of a valid last will and testament (including self-proving will affidavits) read here.

 

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 disinheritance 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 when he/she drafted the will. Also, the will must be a product of his free will such that he must not have been unduly influenced in making 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. If you really want to be safe, also consider a brief videotaped interview during your will signing. 

What About Cheap Online Wills or Trusts?

I would avoid this. Aside from getting what you pay for, the Will software/forms 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). 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. You may think you’re saving money when in fact that’s unlikely the case. And, mistakes during the estate planning phase can be financially and emotionally costly to your loved ones when you die. 

I Had a Will Done In Another State. Do I Need a New Will  After I Move to Washington State?

As of 2021, if the out-of-state will was executed according to the laws for making a valid will in your former state of residence, then is should be valid in Washington state. Such a will is deemed a "foreign will". But, perhaps the more important question is whether it makes sense to utilize a will as your primary estate plan document in light of your move to Washington. For example, if you continue to own real property outside Washington when you die, an ancillary probate proceeding might be required in the state where you own the real property, in addition to a probate proceeding in Washington, in order to retitle the property pursuant to your last wishes. You should consult an attorney to determine whether your estate plan needs to be updated following a move to Washington from another state. 

Will There Be Estate Taxes When I Die?

Until December 31, 2025, each individual holds a federal estate and gift tax exemption (the unified credit) 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. 

 

For more details on the federal estate tax read here.

 

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. 

 

For more details on the Washington estate tax read here.

How Should I Store My Estate Planning Documents?

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. 

 

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. A photocopy of a will is not a valid will as it is not signed by the testator and/or witnesses. 

 

Another option is to file the original will with county clerk’s will repository. 

 

Instructions for doing so with the King County Clerk can be found here. The cost is $20. 

 

The Will must be filed with a coversheet. Here is a link to a cover sheet for filing in the King County Will repository (change county caption for other county repositories).

 

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

What is a Power of Attorney?

A power of attorney (“POA”) is a legal document wherein you delegate authority to another person to make decisions on your behalf. You are the “principal” and the person to whom you delegate decision making authority is the “agent”.  There are two types of POAs: (1) healthcare and (2) financial. A healthcare POA allows another to make healthcare decisions for you when you are physically or mentally unable or unfit to do so for yourself. A financial POA is the same except for it pertains to decisions regarding your property or finances. You can limit the type of financial decision over which your agent can act (for example, run a business, make changes to your estate plan, make gifts, etc.).​

Powers of attorney are revocable, typically by giving notice to the agent to whom you have delegated authority. If the power of attorney was previously recorded you should also record the notice of revocation. 

What is a Durable Power of Attorney?

A durable power of attorney is one that remains valid even fer you may become incapacitated or unfit to make the best decisions on your behalf. Springing powers of attorney are similar to durable powers of attorney in that they are operative during your incapacity, except they only come into effect upon your incapacity. Before signing your power of attorney document you will indicate how incapacity is determined (e.g., after examination by a doctor who has been continuously treating your for at least 2 years prior to such examination). 

What is a Living Will (Advance Healthcare Directive)?

A living will (also known as an advance directive or POLST form) is a legal document that tells others such as your doctor what your desires are with respect end-of-life medical treatment. It lays out the procedures or medications you want—or don’t want—to prolong your life if you can’t talk with the doctors yourself. A living will is different than a medical power of attorney (which is when you choose someone you trust to make medical decisions on your behalf.)