Frequently Asked Questions about Wills
What is a Will?
A legal document or declaration that names one or more persons to manage one’s estate and provides for the transfer of one’s property at death. Historically, a Will transferred one’s real property, and separate document, called a Testament, transferred one’s personal property. Those documents became combined into a Will & Testament. But those distinctions have long since been abolished, and the document used to transfer all of one property at death is now simply called a Will.
What is a Codicil?
A Will that modifies or partially revokes an existing earlier Will.
Are there different types of Wills?
Traditionally, there are three types of Wills:
- Attested Wills: Written and witnessed Wills — what comes to most people’s minds when they think of a Will — and what is generally required for a valid Will in Washington.
- Holographic Wills: Handwritten AND unwitnessed Wills
- Nuncupative Wills: Oral Wills that are:
- Spoken to one or more witnesses,
- In contemplation of death, and
- Usually limited to those at war or under similar circumstances.
Are all of these types of Wills valid in Washington?
No. Washington law does not recognize holographic Wills written by Washington residents in Washington. Note that the “problem” with a holographic Will in Washington is not that it is handwritten but that it is unwitnessed.
Washington law also limits nuncupative Wills to those that are spoken by the Testator during his/her last illness to at least two witnesses and that satisfy a number of other formal requirements. Nuncupative Wills are rare, and this website ignores them.
Who can make a Will?
Any adult (ie, of age 18 or over) of sound mind.
What is a Testator or Testatrix?
A male or female, respectively, who makes a Will.
What is required to make a valid Will in Washington?
1. The Will must be written and signed by its Testator.
2. The Will must be witnessed by two or more persons who:
- Are competent adults, understand what they are doing, and are capable of testifying in Court.
- Have personal knowledge that the Testator signed the Will.
- Sign their names at the end of the Will, at the Testator’s request, and in the Testator’s presence.
What if a Testator can’t sign his name?
A Will can be “signed by its Testator” in any of three ways:
- By the Testator’s actual signature.
- By the Testator’s mark, such as an “X.”
- By another person at the Testator’s request and in the Testator’s presence (if done according to legal requirements).
Must a Will in Washington by typed or printed? Can it be handwritten?
A Will is not required to be typed or printed. It may be handwritten —
as long as it is signed by its Testator and validly witnessed.
Can a person who is to receive property under the Will act as one of its witnesses?
“Yes, but …” Using an interested person as a witness does not invalidate the Will. But, unless two disinterested persons also witness the Will, the gift to the interested witness will be presumed to be invalid. If the interested witnessed cannot successfully rebut that presumption, he/she will be limited to no more than what he/she would have taken had the Testator died without the Will (ie, intestate).
Is a Will required to be notarized for it to be valid in Washington?
No. Using a Notary as a witness or having the Will notarized is acceptable, but no legal benefit obtains from doing so (as long as the witnesses sign a Declaration under Penalty of Perjury, making the Will “self-proving”).
What is a “self-proving” Will?
A Will that the Probate Court will accept at the Testator’s death without having the witnesses come to Court and testify as to the truth of their attestation. In order for a Will to be “self-proving,” the witnesses must sign either an Affidavit or a Declaration under Penalty of Perjury stating that the statements they made in their Attestation Clause are true.
Why have a Will?
There are many reasons to have a Will, for example:
1. To nominate your own list of Personal Representatives and do so in the priority order that you desire.
2. To specify that you want your Personal Representative to administer your estate without Court supervision.
3. To waive Bond for your Personal Representative, saving your estate the cost of a Bond premium.
4. To choose your Beneficiaries — “who gets what” from your estate, among other things, allowing you:
- To give specific property to specific persons, and
- To prevent a potential adverse heir from inheriting property from your estate if you died without a Will.
5. To possibly provide for substantial estate tax savings.
6. To provide through a testamentary trust for ongoing management and control over gifts to any of your Beneficiaries, such as children or elderly parents, who may need assistance in the management of the property or to whom you do not want to give your property outright.
7. To extend past the age of 18 years the age when any child would otherwise receive outright any property left to him/her.
8. To nominate your own list of Testamentary Trustees.
9. If you are survived by any minor children but not by a spouse:
- To nominate your own list of Guardians of their Person, to take care of their personal matters.
- To nominate your own list of Guardians of their Estate, to take care of their financial matters.
- To waive Bond for the Guardian of their Estate, saving their estate the cost of annual Bond premiums.
What if you die without a Will?
If you die intestate — without a valid Will — the Washington state legislature will effectively provide a “free” Will for you. Under your “free” Will, you will:
- Rely on the Court to appoint your Personal Representative, determined according to the state’s priority list of your potential Personal Representatives.
- Rely on the Court to determine whether or not your Personal Representative should administer your estate simply and efficiently, using Nonintervention Powers.
- Cost your estate the premium for a probate Bond to ensure that the Court’s appointed Personal Representative will administer your estate according to law.
- Pass all your estate to your heirs, those relatives whom the legislature has determined will receive your property — see below for “Who are your heirs?”
- Pass your estate to your heirs only in fractional shares, ie, each heir will receive a share of your property, as opposed to “this heir gets this & that heir gets that.”
- Ensure that because of their fractional interests, friction will likely develop among your heirs as to who is entitled to manage, use, or dispose of the property they receive, with the intensity of the friction likely increasing substantially as the number of heirs increases.
- Pay potentially the maximum amount of estate tax for which your estate could possibly be liable.
- Ensure that if you are survived by a spouse:
- All of your half of the community property will pass to your surviving spouse.
- If you have any separate property, one or more persons besides your surviving spouse will likely receive a fractional share of it along with your spouse.
- Ensure that if you are survived by any minor children:
- The Court will likely appoint a Guardian to receive any property passing to those children.
- The Court will require the Guardian to deposit any funds or securities into a blocked account, requiring later Court approval for all withdrawal, and to post Bond covering any personal property not deposited into a blocked account.
- Each minor children will receive his/her gift outright upon attaining age 18 years.
Who will take your property if you die without a Will?
Your heirs, as determined by the Washington legislature:
- If you are survived by a spouse:
- Your one-half of your and your spouse’s community property will pass to your spouse.
- Your separate property will pass:
- If you are survived by children, one-half to your spouse and the other half to your children
- If you are not survived by children, three-quarters to your spouse & the other quarter to your surviving parents or, if none, to your parents children (ie, your brothers and sisters).
- If you are not survived by either children or parents or their children, all to your spouse.
- If you are not survived by a spouse:
- All to your surviving children or, if none
- All to your surviving parents or, if none
- All to your surviving brothers & sisters etc.
What is the difference between community and separate property?
Community property only applies to married couples. If you are married at death:
- Community property is property acquired during your marriage other than by gift or inheritance.
- Separate property is property:
- Brought to your marriage and maintained as separate property (ie, not commingled with community property) or
- Acquired during your marriage by gift or inheritance and maintained as separate property.
What’s the probate process, simply & generally?
1. File any Will and Petition the Court for Appointment of Personal Representative (the “PR”).
2. Send Notice of Appointment of PR to Beneficiaries, Heirs, and Other Interested Parties.
3. Collect & Manage (& possibly Sell) Property.
4. Pay Debts.
5. Determine & Settle Any Taxes Due.
6. Distribute Remaining Assets.
7. Close the Estate.
What does “probate” mean?
Probate means “to prove,” from the Latin verb “probare.”
What is being proved by probate?
The Will of someone (the “Decedent”) who has died leaving a valid Will (ie,
died “testate”). Specifically, what is being proved is that:
- The Will
- Was signed by its maker (its “Testator” (male) or “Testatrix” (female)), and
- Is the most current Will of the Testator/trix (ie, it has not been revoked).
- The Testator/trix was legally competent to make a Will:
- A person
- Of sound mind (ie, having “testamentary capacity” and lacking “insane delusions”)
- Who has attained the age of 18 years.
- The Will was made under lawful circumstances:
- Witnessed by at least two competent witnesses who subscribed their names to the Will while in the presence of the Testator/trix at his/her request, and
- Not made by mistake, restraint (duress), fraud, undue influence, or forgery.
Sidebar: What does “testate” mean?
Testate means “to make a Will,” from the Latin verb “testan.”
To whom is the Will being proved?
The Superior Court usually in the county in which the Decedent resided at death.
For what purpose is the Will being proved?
What is being proved to the Court is that the Personal Representative (in other states, called the “Executor” (male) or “Executrix” (female)) that Decedent nominated in the Will can be appointed by the Court and authorized to carry out Decedent’s desires, as expressed in the provisions of his/her Will:
- By collecting and managing Decedent’s property;
- By paying Decedent’s debts, last illness and funeral expenses, and any taxes due; and ultimately
- By distributing Decedent’s property to Decedent’s named recipients (the “Beneficiaries”), who “take under the Will” or “take by testate succession.”
In summary: To ensure that Decedent’s bills are paid and Decedent’s property is accounted for, transferred to, and retitled in the names of Decedent’s Beneficiaries.
What happens if someone dies without a valid Will?
Without a Will to prove or a named Personal Representative to appoint, the Court turns not to the terms of a Will but, instead, to State law and:
- Appoints a Personal Representative (in other states, called an “Administrator” (male) or “Administratrix” (female)) according to a prioritized list provided by law; who ultimately
- Distributes Decedent’s property in shares to a prioritized list of recipients, the “Heirs” or “Heirs-at-Law”, provided by law, who “take by inheritance” or “take by intestate succession.”
What are the practical differences between “testate” and “intestate”?
|No Valid Will
|Will Signed by Testator
|A “Testate” Decedent, having a “Testate” Estate
|An “Intestate” Decedent, having an “Intestate” Estate
|Petition for Probate of Will & Letters Testamentary
|Petition for Letters of Administration
|“Executor” of Will
|“Administrator” of Estate
| Personal Representative Named in Will
|Personal Representative Appointed according to Priority List in State Statute
|Distributees are “Beneficiaries”
|Distributees are “Heirs” or “Heirs-at-Law”
|Distributees Named in Will
|Distributees Specified in State Statute
|Beneficiaries receive Whole Items
|Heirs receive Shares of Estate
|Sidebar: What happens if Decedent has a valid Will but none of those named is able or willing to serve as Personal Representative?
A Petition for Probate of Will & Letters of Administration With Will Annexed is filed, and an Administrator With Will Annexed is appointed:
- The Personal Representative is an appointed “Administrator,” but
- The Distributees are Beneficiaries, who take under the Will.
And to complete the picture: What happens if Decedent has a valid Will, naming a Personal Representative who is able and willing to serve, but all Decedent’s Beneficiaries predecease the Decedent?
A Petition for Probate of Will & Letters Testamentary is filed, and an Executor(trix) is appointed:
- The Personal Representative is a named “Executor(trix),” but
- The Distributees will be Decedent’s Heirs, who take according to State statute.
What are “Letters” ? How are they obtained?
are the document issued by the Court, evidencing its appointment of the Personal Representative:
- If Decedent died testate, the Letters are known as Letters Testamentary.
- If Decedent died intestate (technically, without a named Personal Representative able and willing to serve), the Letters are known as Letters of Administration.
Letters are obtained by filing a Petition with the Court and having the Court open a probate for the Decedent, ie:
- Admit any valid Will of Decedent and
- Appoint a Personal Representative for Decedent’s estate.
How long does probate take?
That depends on whether the Personal Representative wants to take advantage of the Washington statutory Creditor’s Claim
law. If its benefits are desired, the earliest a probate could close would be under these circumstances:
- Decedent dies.
- By the end of the first week, the Personal Representative obtains Letters.
- By the end of the second week, the Personal Representative first publishes his/her Probate Notice to Creditors, beginning the four-month (sixteen week) Statute of Limitations period.
- At the end of the eighteenth week, the Statute of Limitations expires. By then, the Personal Representative has verified that all Heirs and Beneficiaries are willing to sign a Receipt & Waiver in receipt of their respective estate distribution.
- The Personal Representative concurrently makes distribution and obtains the Receipts & Waivers and then files the Receipts & Waivers and a Declaration of Completion of Probate with the Court, and the estate closes.
That’s 4 1/2 months. Typically 6 months or less is quick, 6-9 months is more usual, and 9-12 months is common where you have a more relaxed PR, a more complex or problematical estate, or if an estate tax return is due (eg, why pay a tax before it is due?).
If the benefits of the Washington statutory Creditor’s Claim law are not desired, a probate could open and close in the same day.