Dying Without A Will

Having your will done is your opportunity to leave final instructions for your loved ones, and to make sure your wishes are properly carried out when you die. You can address all sorts of issues in your will, including establishing guardianships for your children, setting up trusts, taking care of your pets, end of life instructions, and much more. Your will provides directions about how your property should be distributed. If you die without a will, you lose the opportunity to tell your loved ones how to structure and distribute your assets, so your estate will instead be distributed according to Washington law.

What is Intestacy?
Dying “intestate” means that you die without a will. Washington’s intestacy laws will govern who receives your probate assets. The Washington intestacy statutes can be found at RCW 11.04.015. Some assets, like life insurance and retirement accounts, are considered non-probate assets because you have named a beneficiary on those accounts when you set them up, so they pass to the beneficiaries outside of the probate process. Washington law assumes which relatives you would have wanted to receive your property. The statute operates as a default will for those who do not leave a will of their own.

What is Community Property?
Community property is the property that you and your spouse acquire during your marriage, which is considered jointly owned property. Washington is a community property state. Therefore, you cannot bequeath your spouse’s share of your community property, even if you do have a will. If you die without a will, Washington courts first determine which of your assets are community property since your spouse automatically inherits all community property upon your death. Since the law presumes that all your assets are community property when you’re married, if someone claims that an asset is separate property (property owned outside of marriage), that person must show the court why that asset should be considered separate. For example, a gift or inheritance you received while you were married would not be considered part of your community property.

What happens to my Separate Property?
If you have children, they might be entitled to a portion of your estate even when you leave a surviving spouse. Though your spouse receives all community property when you die intestate, the law splits your separate property between your spouse and your surviving children, with your spouse receiving half and your children sharing the other half. If you do not have any children, your spouse inherits all the community property and three-quarters of your separate property, and your parents will inherit the other quarter of your separate property. If your parents have not survived you, then your siblings inherit the other quarter; and if you have no surviving siblings, then it passes to grandparents, then uncles and aunts.

What happens if I don’t have a surviving spouse?
Washington law also outlines what happens in situations in which a deceased person was not married, or whose spouse is predeceased. If you die without a spouse, all of your property is treated as separate property. Then, if you have children, they inherit everything, to be divided equally among them. If you have no children, your parents inherit all of your property. If neither your parents nor children survive you, your property passes to your siblings or, if a sibling has previously died, that sibling’s children.

Who cannot inherit my property?
The following parties are ineligible to inherit assets from the decedent’s estate:
• Unmarried or unregistered partners;
• Friends;
• Charity groups;
• Anyone who has harmed the decedent, such as someone who caused the decedent’s death, or a parent who abandoned the decedent.
As stated above, a spouse usually gets the greatest share of the estate. If children are not involved, the spouse usually receives all assets. More distant relatives usually inherit only if no surviving spouses or children exist.
This process is more complicated if the decedent owns property in different states. Every state has different inheritance laws, which could mean that several different sets of heirs inherit your property. This could lead to a process that is very confusing, expensive, and time-consuming as well.

What can I do to avoid intestacy?
See an experienced estate planning attorney as soon as possible to have your will done. It is also important to make sure you have a durable power of attorney for business and finance purposes as well as for health care purposes so that you can name a person or persons to help take care of your finances and health care if you become unable to do so. Taking these important steps now will ensure that your wishes are carried out properly and that the state doesn’t make the determination of where your assets are distributed.