When is Property Transferred Without a Will in Washington State?

The world of estate planning can be unintuitive sometimes. Many clients believe that all they need to do is draft a will, and all of their property will fall into place. Unfortunately, the law can be a bit more complex than that, which is why it is important to speak with an experienced Washington estate lawyer before making any big decisions about how you want to dispose of your property after you die. While some property can be passed by will, other types cannot. At Gillin Law Group, we support clients through all of their major estate planning decisions and find solutions that work for them. Call us at (425) 947-1130 to reach us or email us at info@gillinlaw.com for general inquiries. We look forward to working with you!

What does “probate” mean?

“Probate” refers to the process by which a court determines how to distribute your property after you die. The probate process involves filing and sometimes proving the validity of a will, appointing an executor or administrator, inventorying and assessing the value of assets, paying the testator’s debts, filing income and estate taxes, and distributing property to the will’s beneficiaries. Probate can be extremely expensive and burdensome. For many people who are building their estate plan, one of the most important goals is to avoid the probate process as much as possible. In order to minimize the amount of property that must pass through probate, you must have a clear understanding of what qualifies as “probate” vs. “non-probate” property in Washington.

Overview of probate vs. nonprobate assets

When planning for your estate, you need to understand the difference between what is included in your probate and non-probate estate.  Probate assets are assets that pass by will or intestacy to heirs. Non-probate assets, on the other hand, pass “by operation of law,” or automatically, to the beneficiaries.

In other words, probate property can be passed by will, while non-probate property passes to the beneficiary named on the asset’s account.

Examples of Probate Property

The easiest way to understand probate property is that any property that belongs only to the decedent is likely to have to pass through probate. For example, if the testator – the person leaving the will – was the sole owner of a home, a car, stocks, a checking account, or any other type of personal or real property, then that asset will almost certainly have to pass through probate.

A few of the ways property can pass through probate include:

  • By a specific bequest in a will (e.g. “I leave my house to my wife…”)
  • By a general bequest in a will (e.g. “$15,000 to my son…”)
  • Through the residuary clause in a will (e.g. “I leave the remainder of my estate to The Humane Society….”)
  • By intestate succession, if the decedent did not leave a will. (Note that without a will, probate property will pass according to the default rules of the Washington state legislature, found at RCW 11.04.015.)

Examples of Nonprobate Property

On the other hand, nonprobate property includes any assets that were jointly owned or had a designated beneficiary associated with the account. Some of the most common types of non-probate property include:

Joint accounts

When a testator shares a piece of property with someone else, that account will typically transfer ownership to the co-owner. For example, if a testator owned a shared bank account with his son, then upon the death of the testator, the bank account would transfer automatically to the son. The testator does not need to leave the bank account in his will, and in fact, if he tried to, it would be invalid.

Jointly-owned real estate

In Washington, like in most states, there are several ways someone can concurrently possess property with someone else: tenants in common, joint tenants, and tenants by the entirety. Both a joint tenancy and a tenancy by the entirety come with a “right of survivorship.” Therefore, if a piece of real estate is owned in either a joint tenancy or a tenancy by the entirety, then upon the testator’s death, the surviving co-owner or owners will inherit the decedent’s share automatically.

Similarly, owners who possess a life estate in property – meaning they are entitled to possess the property until they die – may not pass their interest in the property by will. Therefore, if the owner lived on property where he had only a life estate, the ownership of the property will revert back to the original grantor, or another third-party that the original grantor designated.

Trusts

Despite the connotation that trusts are only for the extremely wealthy, they are becoming a more and more normal part of estate planning. Trusts are a way for the settlor – the person who establishes the trust – to divide legal and equitable ownership over property, so that the trustee manages the investment of the asset, while the beneficiary receives the income or principal from the trust account. Trusts are typically extremely flexible; they can be either revocable or irrevocable, and they allow the settlor to transfer their property into the account during their lifetime to minimize the amount of property that must go through probate. If you have not considered starting a trust, speak to a Washington estate planning attorney to discuss whether a trust is a good fit in your estate plan.

Transfer-on-death deeds

A transfer-on-death deed is just that – it is a deed that designates a beneficiary who will receive title to the property upon the owner’s death. Though this is slightly different from the right of survivorship discussed earlier, a transfer-on-death deed is another mechanism for the decedent to choose a beneficiary to receive their real estate without having to name it in the will.

According to RCW 64.80.060, a transfer on death deed must:

(1) Contain the essential elements and formalities of a properly recordable inter vivos deed;

(2) State that the transfer to the designated beneficiary is to occur at the transferor’s death; and

(3) Be recorded before the transferor’s death in the public records in the office of the auditor of the county where the property is located.

Retirement accounts

401K’s, IRA’s, and other retirement accounts pass to their designated beneficiaries upon the owner’s death. The account holder should identify beneficiaries to be linked to their account, so in the event of the death, the bank will know who the money belongs to. By staying diligent about updating the beneficiaries on all of your accounts, you can be sure that your loved ones will receive your property according to your wishes, rather than risking that it is distributed according to your wishes.

This is a short and non-comprehensive list of nonprobate assets. Be sure to speak with your estate law attorney to be sure you have properly accounted for all of your assets when developing your estate plan.

Life insurance

Life insurance proceeds will almost never pass through probate, although they are technically not considered “nonprobate” under Washington law either. When enrolling in a life insurance policy, you should always be sure to choose not only a primary beneficiary, but a secondary beneficiary as well. Upon the death of the policyholder, the proceeds will belong to the primary beneficiary. The reason for choosing a secondary beneficiary is because, on the rare occasion where the primary beneficiary predeceases the policyholder, you want to have the opportunity to name your second choice. If there is no named, living beneficiary on the life insurance policy, the policyholder has little control over where the proceeds go. In this case, the proceeds will pass pursuant to the insurance contract, and will typically go to the decedent’s estate, which means it will have to go through probate.

Discuss Your Assets with a Washington Estate Lawyer

Though estate planning can be complicated and overwhelming, it is important to ensure you know how all of your assets will be distributed after your death. This is why it is critical to partner with an experienced estate planning attorney in Washington to identify all of your probate and nonprobate property, and dispose of it accordingly. At Gillin Law Group, we have years of experience in the field of estate law in Washington, and we look forward to helping you achieve your goals. Contact us at (425) 947-1130 to schedule a consultation.

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Resources on Wills & Trusts

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