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Where There's a Will, There's a Way

Having a legal will is the traditional way to pass one’s property to heirs or beneficiaries. A will is a legal document that gives the decedent’s (the decedent is the one who has left us for -hopefully - a better place) directions regarding the disposition of the decedent’s property at death. A will states who receives property, in what amounts, and any special provisions for distribution.

A will is a “testamentary” instrument; that is, it doesn’t kick in until death. Until someone dies, they are free to change or modify their will as many times as they deem necessary. Since it is testamentary, it can do nothing to address the needs of the maker if the maker is still alive - instruments such as powers of attorney are necessary to address the needs of the living. Also, having a will does not avoid a probate; in fact, anyone with titled property that needs to be distributed under a will needs to go through probate to transfer title to the property. If you wish to avoid probate, you will need an instrument such as a living trust.

In addition to merely distributing property, a will may perform many other functions. It can name a guardian for minor children or to create a trust for them and appoint a trustee to handle the children’s share of the estate on behalf of children until they attain a designated age. In fact, in cases where minor children are named as heirs, a trust must be created, since minor children are incompetent to receive their inheritance until they are at least 18 years old. Many wills will hold property in trust until children are older, such as 21 or 25 years old. A will can also establish a permanent trust for disabled heirs. A will also appoints a personal representative or "executor" to handle a decedent's property and affairs from the time of death until the estate is settled.

The size of a person’s estate does not matter when deciding whether or not to prepare a will. Anyone who owns property, whether “personal property,” such as cash, jewelry, firearms, keepsakes or furniture, or “titled property,” such as real estate, investment accounts or bank accounts, should prepare a will. If married, even though Washington is a community property state, each spouse should have a will. Washington does have a document called a community property agreement that is only allowed between spouses that will transfer assets more or less automatically between spouses at the death of one spouse. However, a community property agreement cannot address where the property goes at the death of the second spouse or what happens to the property if the spouses are killed in a common accident, so executing wills in addition to a community property agreement is a good idea.

A will can only be made if a person is legally competent. This means they have to be of sound mind and at least 18 years old. The will should also be prepared while the person is in good mental health, free from emotional stress, and not under the influence of someone else who is directing the terms of the will. In other words, to make a valid will, you must understand such things as what property you own, its general value, to whom you are leaving it to when you die, and be acting of your own accord.

When there is no valid will, the person is said to have died "intestate." When a person dies intestate, a court appoints an administrator to handle the estate, and the property is then distributed according to state law. Generally, after payment of taxes, debts, funeral expenses and administrative costs, the property goes to the surviving spouse, children and/or relatives. Washington law is specific as to how property is to be distributed, including which relatives have priority over others and how the property is divided. The state statute makes no provision for those with special needs; separate legal actions are often required to address those heirs with special needs. The bottom line: If you want to have any control over what happens to your stuff when you die, prepare a will!

Other requirements for a will to be valid in Washington are that the will must be written, dated, and signed in the presence of two legally competent witnesses. The witnesses should not be heirs or beneficiaries of the will, and they do not need to know what the will says. They only need to be competent to testify that the will was signed in their presence. It’s also a good idea to have a will notarized.

A few other things: Assets held as joint tenants with right of survivorship (JTWROS) with another person will trump a will and pass automatically to the joint tenat, regardless of what a will says. The same with beneficiary designations on retirement accounts or insurance policies; they go automatically to the named beneficiaries. Handwritten wills - also called holographic wills - must adhere to the same requirements as typewritten or professionally prepared wills to be valid. Old Uncle Pen on his deathbed scratching out a will on a 2 x 4 with a piece of coal all by himself in a cabin in the woods is wasting what little time he has left; a will must be drafted and executed according to the statutory requirements or it is meaningless. Lastly, a valid will drafted in another state is valid in Washington. If you have questions about a will or estate planning in general, please contact us.

Caleb Morgan