Will: A legal document that names one or more persons to manage and transfer one's property at death. Website sponsor & contact information

Your “Free” Will — as provided for you by the state legislature

If You Die Without a Will

Having a Will Lets You: …

Table of Comparisons & Contrasts

A. 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:

  1. Rely on the Court to appoint your Personal Representative, determined according to the state’s priority list of your potential Personal Representatives. See RCW 11.28.120 for the state’s priority list.
  2. Rely on the Court to determine whether or not your Personal Representative should administer your estate simply and efficiently, using Nonintervention Powers.
  3. 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.
  4. 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?”
  5. 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.”
  6. 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.
  7. Pay potentially the maximum amount of estate tax for which your estate could possibly be liable.
  8. Ensure that if you are survived by a spouse:
    1. All of your half of the community property will pass to your surviving spouse.
    2. 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.
  9. Ensure that if you are survived by any minor children:
    1. The Court will likely appoint a Guardian to receive any property passing to those children.
    2. 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.
    3. Each minor children will receive his/her gift outright upon attaining age 18 years.

And who are your heirs? — those persons who will receive what’s left of the property in your estate, after payment of debts, taxes, and expenses?

  • 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.

Notes:

  • All of above is subject to the Right of Representation (ie, surviving children take what their predeceased parent would have taken had he or she survived).
  • 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.

 

B. Having a Will Lets You:

  1. Nominate your own list of Personal Representatives and do so in the priority order that you desire.
  2. Specify that you want your Personal Representative to administer your estate using Nonintervention Powers, allowing him/her to administer your estate with more flexibility and legal authority than a Trustee has over a Living Trust.
  3. Waive Bond for your Personal Representative, saving your estate the cost of a Bond premium.
  4. Choose your Beneficiaries — “who gets what” from your estate, among other things, allowing you:
    1. To give specific property to specific persons, and
    2. To prevent a potential adverse heir from inheriting property from your estate if you died without a Will.
  5. Provide for substantial estate tax savings.
  6. 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. Extend past the age of 18 years the age when any child would otherwise receive outright any property left to him/her.
  8. Nominate your own list of Testamentary Trustees.
  9. If you are survived by any minor children but not by a spouse:
    1. Nominate your own list of Guardians of their Person, to take care of their personal matters.
    2. Nominate your own list of Guardians of their Estate, to take care of their financial matters.
    3. Waive Bond for the Guardian of their Estate, saving their estate the cost of annual Bond premiums.

 

C. Summary of Having No Will vs. Having a Will

 

 

Issue No Will Will
Asset Issues:
Disposition of property in general Property passes in estate shares to your heirs as provided by state statute Allows you to give specific assets and to name the beneficiaries who receive them (eg, anyone, friends, charities, etc.; they need not be your relatives)
Disposition of tangible personal property (“TPP”) As above Allows you to dispose of most TPP by a revocable/amendable, separate, signed writing referenced in your Will
Disposition of certain nonprobate assets Property passes independent of Will Allows you to override the passage of certain nonprobate assets & to name their beneficiaries in your Will
Asset management following probate Not possible Allows your assets to have common management in trust under terms you provide
Gift Issues:
Disposition of property to incapacitated persons, such as minor children Necessitates the appointment of a guardian to receive any property that passes to a minor or other incapacitated person; such person automatically entitled to property when incapacity lifted, such as at age 18 for a minor Allows you to avoid the necessity of a guardianship and to specify the terms under which any beneficiary (ie, not just a minor) is entitled to the property (eg, when, where, how, under what conditions)
Survivorship: Beneficiaries Survivorship determined simply upon order of death Allows you to specify survivorship period, possibly avoiding the gift’s being subject to a second probate if the beneficiary does not survive your stated survivorship period
Survivorship: Simultaneous deaths Subject only to state statute Allows you to specify who survives upon simultaneous death, possibly resulting in substantial probate and tax savings
Disinheritance of your relatives Not possible Allows you to disinherit someone who would otherwise inherit as an heir
Exercise of Testamentary Power of Appointment Not possible Allows you to make such exercise, which can be made only by Will
Fiduciary Issues:
Guardian for your minor children Appointed by the Court according to state statute Allows you to nominate your children’s Guardians
Personal Representative Appointed by the Court from a priority list provided by state statute Allows you to nominate your Personal Representative
Efficiency & Expense Issues:
Simplified probate procedure (ie, “Nonintervention Powers”), substantially reducing effort and expense and allowing actions such as the selling of assets, the continued operation of a business, and the settlement of the estate and distribution of its assets without Court intervention Possible if your estate can qualify and no one objects Allows your estate to qualify without satisfying further requirements
Probate bond Usually unavoidable Allows you to waive your Personal Representative’s having to post bond, at added expense
Debt & Tax Issues:
Specification of source of funds for payment of debts and taxes Not possible Allows you to specify which assets to use or sell for such payment
Reduce income and death taxes Not possible Allows you the possibility of substantial tax savings through the use of trusts and other techniques
Sense of Personal Control Lacking, as all actions determined by state statute and the Court Allows you substantial control over the management and disposition of your estate, not just during the probate process but thereafter through the use of trusts