Do I Need a Will? — Understanding the Intestate Succession Laws in Washington State
This is the foremost question people ask when they are considering estate planning. Oftentimes, the implied question is, “What if I don’t have a will?” In most circumstances, when a person dies intestate (meaning “without a will”), the intestate laws of the state where the decedent resided determine how the decedent’s estates are distributed.
All states have intestacy law; and each state sets its own rules for intestate succession. The state’s legislature assumes what would conform to most people’s preferences and creates the default rules to provide a fallback for people who die without a valid will. It ensures the decedent's assets are distributed to their surviving relatives in an assumably fair and foreseeable manner. Knowing the default rules allows you to understand its applications and limitations.
Washington’s intestate succession laws distinguish between the decedent’s community property and separate property. Therefore, before we get to the default rules for intestate succession, it is important to understand the characterization of property for estate planning purposes.
Washington State is a community property state. Broadly speaking, under Washington law, a person’s property can be characterized as one of the following: (1) community property; (2) separate property; (3) community-like property; or (4) quasi-community property. Community property is property that is jointly owned by a married couple. In contrast, separate property is property that is owned separately by one of the spouses. Generally speaking, in Washington State, property acquired during marriage is deemed to be community property regardless of who earned or acquired it and whose name is on the title. And property that is owned by a spouse before the marriage and gift and inheritance are generally considered the spouse’s separate property. However, these presumptions can be changed by the couple’s agreement or action or be proven otherwise in court.
For estate planning purposes, broadly speaking, a spouse may give away in a will their separate property and their share of the community property. If you have any questions regarding the characterization of your property for estate planning purposes, we highly recommend that you speak with an experienced estate planning attorney.
When a person dies without a valid will, the State’s intestate succession statute provides inheritance rights to his or her property based upon familial relationships, such as spouse, children or grandchildren, parents or siblings, and grandparents. Generally speaking, if the decedent has a surviving spouse or state registered domestic partner, a portion of the decedent’s estate will go to the spouse or domestic partner, and the remaining interests will be divided to the decedent’s other heirs, such as children, grandchildren, parents, or siblings, based on the degree of kinship. If the deceased person does not have a surviving spouse or domestic partner, the entire estate will be distributed among the other heirs based on the degree of kinship.
Here are a few examples to broadly illustrate the default rules in the circumstances when the decedent did not leave a valid will:
Amy is survived by her husband. She has no other heirs such as children, parents, siblings, and grandparents. According to the default rules, Amy’s husband will receive Amy’s entire estate, which include 100% of her interest in their community property, and 100% of her separate property.
Bob has a surviving wife and 3 surviving children. According to the default rules, Bob’s wife will receive 100% of his interest in their community property and 50% of Bob’s separate property. The remaining 50% of Bob’s separate property will be distributed among their 3 children.
Connor’s wife predeceased him. He is survived by their two sons. According to the default rules, Connor’s entire estate will be distributed among his 2 surviving sons.
Diana is survived by her husband. Together, they have no children or grandchildren. Diana’s parents predeceased her, and her 3 siblings are still alive. According to the default rules, Diana’s husband will receive 100% of her interest in their community property and 75% of the Diana’s separate property. The remaining 25% of the Diana’s separate property will be distributed among her 3 surviving siblings.
Elaine has no heirs. According to the default rules, her estate will escheat (meaning “pass”) to the State.
As illustrated above, when a person dies without a valid will, Washington State’s intestate succession laws provide a set formula for distributing assets among the heirs based on the degree of kinship. Relying solely on the default rules generally does not achieve your desired outcomes and definitely does not give you any control over how your estate is distributed after your passing.
Further, as discussed in our previous article, “The Basics of Estate Planning 2024,” estate planning encompasses other crucial aspects of later life planning, including planning for incapacity, authorizing a trusted person to manage your financial and/or healthcare matters on your behalf, and providing advance directives to your physicians and/or loved ones. Hence, we strongly recommend that you take control over your planning and seek legal advice from an experienced estate planning attorney.
On a side note, not all assets are subject to intestate succession. Some assets are passed directly to the beneficiaries outside the probate process. Generally speaking, assets that are passed directly to the beneficiaries include jointly owned property with survivorship rights, life insurance policies or retirement accounts with designated beneficiaries, and pay-on-death or transfer-on-death accounts. These assets bypass the state’s intestate succession laws and will pass to the co-owners or designated beneficiaries when the decedent dies.
Estate planning is a vital step in preserving your legacy and ensuring your loved ones are cared for according to your wishes. Creating a comprehensive estate plan provides peace of mind for you and your family. We recommend that you seek competent legal services for your estate planning. If you need assistance with your estate plan, please contact us.
This article is also available in Traditional Chinese and Simplified Chinese.
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