Types of Wills and Trusts in Washington State

Washington residents have many options when it comes to transferring property upon death. Wills and trust come in many forms and they each have different requirements for recognition by the courts in Washington.

Each of these options has advantages and disadvantages. Selecting one form over the others often comes down to which will carry out your wishes in the most efficient and least expensive way.

Here is a guide to some of the types of wills and trusts available in Washington State and the advantages and disadvantages of each.

Wills

A will transfers ownership to your property upon your death. A will is more than a set of wishes or requests. A court must carry out the transfers in the will as long as the will meets the statutory requirements.

Simple Will

Also called a last will and testament, a simple will describes the transfers of property to occur upon the maker’s death. A will is a staple of estate planning.

A simple will does not need to have simple terms. Instead, “simple” refers to the fact that the will:

• Applies to the property of one person
• Does not operate with a trust

Wills that lack either of these characteristics have a different name and are discussed later.

Under Washington law, a valid will must be:

• Written
• Signed by the person making the will
• Witnessed by two witnesses

The witnesses must sign the will or an affidavit in the presence of the person making the will.

A valid will transfers property as directed in the document. You can also identify a guardian for your minor children and appoint an executor in your will. An executor acting on your behalf carries out the instructions in your will.

The benefit of a simple will is that it is easy and inexpensive to create. A will does not need to contain any magic words. You do not even need a lawyer to write a simple will. A valid will must only evidence the maker’s intent to transfer property upon death.

One drawback of a simple will is that it might not operate exactly as you intended if you write it yourself. While it does not need to contain any magic words, ambiguities can create problems for a court that is attempting to interpret the will.

Another drawback of a simple will is that it is vulnerable to challenges in probate court. Challengers may contest the will based on your state of mind when you wrote it or technical defects in the will.

If challengers successfully contest the will, your property will not pass as you intended.

A major drawback of all wills is that they must go through probate. Probate proceedings can take time and cost money.

Joint Will

A joint will transfers the property for multiple people, such as a married couple, in a single document. A joint will is typically used by spouses when:

• Each spouse wants everything to go to the surviving spouse when one spouse dies
• Both spouses agree who will receive the property when both spouses die

The benefit and drawback of a joint will are that it becomes irrevocable after the first party dies. This means that the surviving spouse cannot change the joint will. A court must carry out the terms of the joint will as it was originally written.

This guarantees that the court enforces the makers’ intent when they wrote the joint will. It also prevents a surviving spouse from changing their mind later on.

Holographic Will

A “holographic will” means a handwritten will. But writing a will by hand does not invalidate it as long as it meets the requirements described previously.

Instead, a holographic will refers to a handwritten will that lacks witnesses. As mentioned previously, a valid will in the State of Washington must have two witnesses. A Washington court will not validate a holographic will, since it lacks witnesses.

But a Washington court will give effect to a holographic will if it was validly made in another state. For example, Idaho recognizes holographic wills. If the maker wrote a valid holographic will in Idaho, a court in Washington would recognize its validity.

The drawback of a holographic will in Washington is that it is probably not valid under Washington law.

Nuncupative Will

A nuncupative will is an oral will. Washington recognizes oral wills under some circumstances. Members of the U.S. armed forces or merchant marine can dispose of wages and personal property by telling two witnesses their wishes. Similarly, any person can dispose of up to $1,000 in personal property by speaking their instructions to two witnesses.

The drawback of a nuncupative will is that the surviving spouse and children of the maker can contest an oral will. Also, the maker cannot dispose of real property by an oral will.

Trusts

Trusts are legal instruments that separate legal ownership from beneficial rights in a piece of property. For example, you could establish a trust where your bank owns your home and your land as the trustee, but you enjoy the benefits by living in the house and using the land.

Revocable Living Trust

A revocable living trust puts your property into a trust while you are alive. The trustee holds this property for your benefit and distributes the property upon your death according to your instructions.

The benefit of living trusts is that the property in a trust does not go through probate upon your death. Instead, the trustee transfers the property as you instructed in your trust.

The disadvantage of trusts is that they require careful estate planning before you die. But if you go through this process with an experienced estate planner, you can smooth out the process for your family after your death.

Many people combine a revocable living trust with a pour-over will. A pour-over will transfers any non-trust property into the trust upon your death. This allows your entire estate to pass according to your trust instructions.

Testamentary Trust and Will

A testamentary trust and will creates a trust upon your death and moves your property into it.

Since the property in a testamentary trust passes into the trust after your death, it must go through probate. Probate can be a significant disadvantage of a testamentary trust.

But if you need to fund a trust for the long-term support of a beneficiary, such as a special needs child, a testamentary trust might fulfill your needs.

Contact Gillin Law Group, PLLC to discuss which of these wills and trusts is right for your estate planning needs.