All lawyers get asked a certain set of questions by their family, friends, and associates. One of the most common is, “Do I need a will?”

Wills serve two primary purposes. First, they specify who gets the property of the testator (the person making the will). Second, they specify who will administer the testator’s estate as the testator’s personal representative. Without a will, the law decides these matters. So, to understand whether a will is needed requires understanding “intestate law,” which is the law that applies to persons who die without a will. What follows discusses Washington law.

Intestate Descent

Intestate law attempts to reflect societal norms for the disposition of the deceased’s property. Where the property will go depends on whether the deceased was married at death.

If married, all of the community property that the deceased and his or her spouse possessed goes to the spouse. If the deceased had separate property, then one-half of that separate property is split among the children, and one-half goes to the spouse. If the deceased had no children, then one-quarter of the deceased’s separate property goes to his or her parents and three-quarters goes to the spouse.

If not married, then all of the deceased’s property goes to his or her children. If no children or descendants of children, then the property goes to the parents. If the parents and all of the parents’ descendants are no longer alive, then the property goes to the grandparents.

When property goes to a child who is no longer alive, that child’s share is split among that child’s children. This splitting continues through the generations until surviving descendants are found. When property goes to the parents (because there are no living descendants of the deceased), then if neither parent is alive, the property goes to the siblings of the deceased. If a sibling is no longer alive, then that sibling’s share goes to that sibling’s descendants. If instead the property is going to the grandparents but they are no longer alive, then property flows to the aunts and uncles of the descendants and then to cousins in the same manner.

If no grandparents or descendants of the grandparents are alive, then the property goes to the State of Washington. This is called escheatment.

There are other detailed rules that apply in certain circumstances, such as in mixed families where persons are related only through a single ancestor.

It may be that this method of distribution is satisfactory. But if not, a will (or nonprobate asset, which I will cover in another post) is required to distribute the property differently.

Administrator

If the descendant’s probate estate (not including nonprobate assets) is worth more than $100,000 or includes an interest in real property (real estate), then the estate must be handled in court. Usually (but not always), an administrator of the estate must be appointed. If a person wants his estate administered by a specific person, he or she must make a will naming that person. Otherwise, the court may appoint any qualified person to administer the estate.

Other Reasons For A Will

There are several other reasons why a will may be desirable. Here are a few examples:

Specific Requests. A testator may wish to give certain items of personal property or specific amounts of money to specific persons. This sort of precision usually requires a will.

Specific Instructions Regarding Property. Normally, an administrator of an estate has discretion to distribute the property as is or to liquidate it and distribute the sales proceeds. These decisions can be sources of conflict among the beneficiaries of an estate, especially if the administrator is a family member. The testator may wish to be specific in this area to avoid conflict.

Giving Community Property. Since all community property goes to the spouse under intestate law, a will is required if the testator wishes for some of his or her half of the community property to go to someone other than the spouse. However, the law provides for family support to go to the spouse, which could defeat the testator’s attempt to give his half of the community property to someone else.

Avoidance of Estate Taxation. If a person’s property is worth over $2 million (at the time of this writing, although this number may change), then there may be ways to avoid the payment of estate taxation upon death. But this requires a will.

Children’s Trusts. A testator may wish to give property to children through a trust that is managed by someone the testator trusts. Children’s trusts may allow distribution only in certain circumstances, such as when a child experiences a medical problem or for education, and then may distribute the balance of the trust while the child is older.

Nonintervention Probate. If a person dies without a will and his or her estate has real estate or property over $100,000, then the court will have to supervise the distribution of the estate. A will allows the testator to indicate that he or she prefers the court to not supervise the distribution, which is called a nonintervention probate. This election can save the survivors considerable time.

Few of us enjoy contemplating our deaths, particularly if young. Yet, other than taxes, nothing else is certain, or so the saying goes. It is worth spending a little time to decide if a will is necessary to fulfill your wishes should that inevitability come earlier than planned.

This website provides general information to the public on legal issues. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact Brandli Law for advice on specific legal problems.

Copyright 2015 Brandli Law PLLC