Wills
A will directs who ultimately receives an individual’s property. A will consists of several different sections.
1. Identification of Testator and Revocation of Prior Wills.
The first section of a will identifies the individual who will sign the will and his or her domicile. The person who signs a will is called a “testator.”
A will typically states that the testator revokes any prior wills or codicils. This statement revokes any prior original wills that may have been left with another attorney. The testator can revoke his or her will by tearing it up, crossing out the language, or destroying it in any other manner. A testator cannot reinstate an earlier will by revoking his or her current will.
2. Identification of Testator’s Spouse and Children.
A will identifies the testator’s family; in particular, the testator’s spouse and children, if any. If a testator names his or her spouse and children, he or she can omit the spouse or children from any gifts under the will. The testator has no obligation to give anyone, including his or her spouse and children, any property.
For example, David does not want to leave anything to his daughter, Chris. His will should still identify Chris as his daughter. It may also state for clarity that he intentionally leaves nothing to Chris.
If the testator fails to name his or her spouse and children, then the omitted spouse or child can receive his or her intestate share (the share if the person has no effective will) of the estate.
For example, David has two children with his spouse, Martha. David has a child, Charles, outside of his marriage after he signs his will. David dies. Charles can claim 1/3 of 50% of David’s separate property, the child’s share, as if David died without a will.
Generally, people filing for divorce do not want their spouse to receive anything. After a couple is divorced, Washington state law revokes any gift in a will to a former spouse. However, during the divorce, if a person dies with a will giving everything to his or her spouse, the spouse will receive the gift in the will. Before a person files for divorce, to keep the soon-to-be ex-spouse from inheriting anything if the person dies in the midst of the divorce, he or she should sign a new will naming the spouse, but leaving nothing to the spouse.
For example, David and Martha are in the process of getting divorced. Before Martha filed for divorce, David changed his will to state that Martha was his spouse, but he intentionally left her nothing. David dies. David’s property, including his half of the community property, will be distributed as he directs in his will.
In comparison, David does not change his will before the divorce was filed. His old will provides that Martha receives everything. David dies. Martha receives all of David’s property if the final divorce papers were not signed by the Judge when David died.
3. Tangible Personal Property Distributed by List.
A will can state that the testator will use a list outside of the will to dispose of his or her tangible personal property. Tangible personal property means articles of personal or household use such as furniture, furnishings, automobiles, boats, jewelry and precious metals. Tangible personal property does not include mobile homes, money, notes or contracts, bank accounts or other monetary deposits, documents of title, securities, stocks or bonds. This reference to a list allows a testator to change the ultimate beneficiary of his or her tangible personal property as frequently as the testator desires without the necessity of visiting an attorney, but the will must mention the list for the list to be binding. To change the list, the testator merely dates and signs a new list distributing his or her tangible personal property. The list does not need to be witnessed or notarized. When the testator uses the list to distribute his or her tangible personal property, he or she needs to clearly describe the item that the beneficiary is to receive so that it cannot be confused with any other items owned by the testator.
For example, Martha wants to leave her daughter, Chris, her kitchen table. Martha describes on the list the kitchen table so that it cannot be confused with any other table in Martha’s house. Martha then signs the list and dates it the same date that she signs it.
The testator has no obligation to use any particular type of paper for this list. The testator can use computer paper, notebook paper, a napkin or any other paper the testator chooses.
4. Specific Gifts.
The will can include any other specific gifts that the testator wants to make. A testator can give specific dollar amounts.
For example, I give $5,000 to Junior Achievement.
Specific gifts can be a specific item.
For example, I give my AT&T stock to my grandson, George Smith.
5. Remainder.
After a testator makes all of his or her specific bequests, he or she distributes the remainder of his or her property. The testator can distribute the remainder to a class of people such as “my children,” or to an individual or an organization. In addition, the testator can divide the remainder between a class of individuals, listed individuals, or organizations.
For example, I give the remainder of my property in equal shares as follows: (a) one share to Chris Smith, or if she is deceased, to her descendants, (b) two shares to be equally divided among my grandchildren, and (c) one share to Whatcom Community Foundation.
The testator can give the property outright to the beneficiary or place restrictions on the gift by using a trust.
6. Trust Provisions for Children.
Generally, people distribute inheritances for beneficiaries under the age of 25 in trust. A standard trust allows the trustee to use trust income or principal as necessary for the beneficiary’s maintenance, education, support and health. Typically, the trustee will distribute all of the trust principal at some point during the beneficiary’s lifetime. Some people believe that a beneficiary should only receive one distribution of the principal (for example, at the age of 30). In comparison, other people believe that the beneficiaries should receive a series of distributions (for example, one-third at age 25, one-half at age 30, and the remainder at age 35). The idea behind the series of distributions is that the beneficiary will spend the first distribution in a short period of time. The second distribution may be divided in a divorce settlement, and the third distribution is the distribution that the beneficiary uses in a responsible manner. If the will includes trust provisions for minors, the will then prohibits the beneficiary from selling the trust and creditors from attaching to the trust principal before the trustee distributes the trust principal to the beneficiary.
Trusts can also be used to avoid compounding a child’s estate tax problem or distributing funds to a financially irresponsible child. (See the chapter regarding generation-skipping distributions.)
7. Catastrophe Provisions.
A will should provide for an alternate distribution of the remainder if the testator survives his or her beneficiaries.
8. Trustee Powers.
A testator names in the will who will act as the trustee of the trusts. If the will includes a trust for a surviving spouse only to avoid estate taxes at the time of the second death, then the spouse might receive the power to remove any trustee and appoint anyone he or she desires as a successor trustee. The testator can give the other income beneficiaries the right to change the trustee. In case the trustee and the other beneficiaries do not agree, then the other beneficiaries should have the right to change the trustee from an individual trustee to a corporate trustee, or to another corporate trustee. The trustee must invest the trust money as a prudent person invests his or her own money.
For example, a trustee would not keep the trust money solely in a certificate of deposit or in a fairly aggressive stock. The trustee invests the trust in a variety of investments.
9. Personal Representative.
The will states who will act as the personal representative. The personal representative is another name for the executor of the will, or the administrator, if there is no will. The personal representative cleans up the testator’s affairs at the time of death. The personal representative collects all of the assets, pays the bills and distributes the assets according to the will. The will should state that the personal representative can act without the court’s intervention and that the personal representative can act without being bonded. If the will does not state what the personal representative receives as compensation, the personal representative receives reasonable compensation for his or her services in handling the estate. A person should inform the personal representative as to where the personal representative can find the will.
10. Guardian.
The will states who will act as the guardian of any minor children. The guardian should be an individual rather than a couple so that the minor child does not become a pawn in any divorce of the couple who acts as the guardians. In case the named guardian cannot act as the children’s guardian, the will should name an alternate guardian. The court will generally appoint any named guardian unless the person is seriously unfit to act in that capacity or a surviving biological parent wants to raise the minor child.
11. No Will.
The state has devised a distribution plan for deceased individuals who do not have a will in effect upon their death and own property that does not pass by beneficiary designation. If the deceased person is unmarried and has not registered as part of a domestic partnership, all of his or her property goes to his or her children, if any. If there are no children, then the deceased individual’s parents receive all of the property. If there are no surviving parents, then all of the deceased individual’s property will be distributed to the descendants of the deceased individual’s parents. If there are no surviving lineal descendants of the parents of the deceased individual, then to grandparents. If there are no surviving grandparents, then to the descendants of the deceased individual’s grandparents.
If the unmarried person and his or her partner register as a domestic partnership, then the domestic partner would receive the same share as a spouse.
If a person is survived by a spouse, the surviving spouse will receive all of the community property and one-half of the separate property if the person is survived by children. If the person has a surviving spouse but no children, then the surviving spouse receives all of the community property and three-fourths of the separate property if the person’s parents are surviving.
Just because the state states that a surviving spouse will receive all of the community property and a portion of the separate property, that does not mean that it transfers automatically. There will need to be an intestate probate if the individual has no will or community property agreement, or if the property did not pass by beneficiary designation.
12. Property Distributed by Will.
At the time a person dies, his or her will is filed with the Superior Court Clerk in the county in which the person lived or in another county in the state if no one objects. Wills can be filed with the court clerk during the lifetime of a person. Although a will is filed with the Superior Court Clerk, no inventory needs to be filed with the will. Wills only distribute property that is not distributed by beneficiary designation.
For example, Martha has named Martin on her brokerage account as a joint tenant with right of survivorship. Martha’s will says that all of her property is to be distributed in equal shares between Martin and Charles. The brokerage account is distributed to Martin as the joint tenant. The brokerage account is not subject to the terms of the will since it is distributed by beneficiary designation. Therefore, Martin receives the brokerage account and Charles receives nothing from that brokerage account.
13. Formal Requirements of a Will.
In Washington, a person must be at least 18 and “of sound mind” to make a will. The person must sign the will in front of two witnesses who are present at the same time. Generally, the witnesses also sign an affidavit of attesting witnesses in the presence of a notary public so that the personal representative does not have to locate the witnesses at the time of the person’s death. Some states require three witnesses instead of two. A will validly signed in another state is also valid in Washington.
14. Filing a Will.
A will can be filed with a Superior Court Clerk in Washington for safekeeping. While the testator is alive, the will is sealed so that only the testator can retrieve it from the Superior Court Clerk’s office. The public cannot read the will until after the testator has died. Although a person has to pay the court clerk a filing fee to have the original will sealed, the personal representative will have a better chance of locating the will when it is needed at the time of the testator’s death. It avoids having to probate a lost will which costs significantly more than the filing fee. However, every time a testator changes his or her will, a filing fee is paid to file the will. The testator also has to personally withdraw the previous will from the will repository.
15. Conclusion.
Wills allow individuals to determine who will receive their property and how their beneficiaries receive the property. Wills that include nonintervention provisions and provisions that the personal representative does not need to be bonded or get court permission to act reduce the cost of administering the will in a probate.