What is a will, and should I have one?

A Will is a document signed by an individual (or “Testator”) which contain certain instructions regarding the handling of that individual’s personal and financial matters upon his or her death.  Any competent person who is at least 18 years old may make a will.  Since it does not take effect until the testator’s death, a will can be revoked or changed at any time the testator is alive and competent.  Wills don’t avoid probate, but they do give the testator a chance to direct how he or she wants matters handled.

Wills must be signed and witnessed in the precise manner prescribed by state statute.  In order for a will to be valid in Washington state, it must have been signed in a manner which is valid here in Washington.  If the will was signed in another state, in order for it to be valid in Washington state it must have been signed in accordance with the statutes of that state, or in the manner which is acceptable here in Washington. 

Holographic wills are wills which are handwritten by the Testator but not witnessed as required by Washington’s statute of wills.  Holographic wills are not valid in this state unless they were prepared in a state that does recognize them.

A will should specifically deal with any child or spouse of the testator, and specify what happens if one of the beneficiaries dies before the testator.  Failing to do so may result in an heir obtaining a right which the testator never intended.

What happens if a person has no will?  Each state has statutes which describe how a decedent’s property is distributed and who is entitled to administer the estate in the absence of a valid will.  In Washington, a surviving spouse receives any community property and a portion of the decedent’s separate property.  The size of the portion depends upon what other relatives survive the decedent.  For example, the surviving spouse receives half the decedent’s separate property if the decedent is also survived by children.  The decedent’s children get the rest.  If there are no children, the share of the surviving spouse increases as the decedent’s closest surviving relatives become more distant.

In cases where an unmarried person dies without a will, the statute provides that any children and their lineal descendants take the decedent’s estate, but if there are none, then the decedent’s parents or the parents’ descendants receive the decedent’s estate.  Adopted children are normally treated the same as natural children for these purposes.  Title 11 of the Revised Code of Washington should be consulted any time there are questions about who is entitled to receive property from a Washington resident who died without a will.  It is even possible to have different rules apply to different property if a decedent died without a will and owned property in more than one state.  But beyond the statute, decisions of Washington’s appellate courts provide that under some circumstances, an individual not married to a decedent but who lived with the decedent in a long term stable meretricious relationship is entitled to receive a portion of assets held in the decedent’s name which would have been considered community property had the parties been married at the time the property was acquired.  This applies to same-sex couples as well as traditional couples.

In the absence of an appropriately drafted will or living trust, heirs who are 18 years of age or older are entitled to receive any distributions outright.  Usually, most testators prefer to provide for distribution at a later age when the recipient is more responsible and able to handle the gift—which requires appropriate planning. 

A will can serve several purposes.  Each person is entitled to direct who will receive his or her property when he is gone.  Of course, a married person’s authority to make gifts by will is limited to one-half of the couple’s community property and all of his or her respective separate property.  A will can also establish the timing and manner in which this property is actually distributed to the intended recipients, particularly where the recipient is underage, disabled, or in need of assistance in managing assets.

Parents can nominate the persons they believe to be best suited to take care of minor children (i.e. to be “guardian(s)” for those children) until each child reaches age 18.  Special trusts can be added to wills and living trusts to reduce potential taxes, protect assets from the creditors of a particular beneficiary, make distributions for the beneficiary’s college education, or otherwise accommodate a beneficiary’s particular needs.  Testators are free to choose the person or institution they feel is best suited to be in charge of these personal and financial matters as the personal representative of their estate, or the trustee of any trust which is contained in their will.

A well-drafted will may reduce tension between family members, or even reduce the chance of litigation.  Wills also serve as a backstop for other estate planning tools, like living trusts and community property survivorship agreements, to make sure the testator’s intentions are carried out.