WASHINGTON WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Washington Revised Code, Chapter 11.12 (RCW ยงยง11.12.010, et. seq.).
Trusts:ย Washington Revised Code, Chapters 11.97 โ 11.118 (RCW ยงยง11.9.010, et. seq.).
Washington Will Requirements.
To form a valid will in Washington, a testator must be at least 18 years old and โof sound mind.โย Washington wills must be in writing and must be signed by the testator (or someone who signs at the testatorโs direction while in the testatorโs presence).ย Wills must also be attested by two witnesses, who witness the document by either signing the will itself or signing an affidavit attesting to the willโs authenticity.ย
A witness is considered an โinterested witnessโ if he or she receives a share of property distributed by the will.ย A Washington will is not invalid just because it is attested by an interested witness.ย However, distributions to an interested witness are presumed to have been improperly procured by the witness.ย Unless the presumption is rebutted, a disposition to an interested witness is void, and the witnessโs share in the estate is limited to what he or she would have received had there been no will.
Washington law permits wills to incorporate by reference other documents in existence when the will is executed if the document is sufficiently described to allow identification.ย Any inconsistency between the will and the incorporated documents is revised in favor of the will.ย ย
Washington specifically recognizes a testatorโs right to incorporate by reference a document often called a memorandum of personal property, which disposes of tangible personal property.ย The memorandum must be in the testatorโs handwriting or signed by the testator, be referenced in the will, and identify property and beneficiaries with reasonable certainty.ย The written document can be created before or after execution of the will, and the testator may make handwritten revisions to the document.ย A memorandum of personal property cannot dispose of real estate or property primarily used for trade or business.
Washington wills do not require notarization, but a will can be made โself-provedโ through execution of a statutorily compliant affidavit.ย If executed, the affidavit serves the same role in probate as the witnessesโ testimony as to the authenticity of the will.
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Amendment, Revision, and Revocation of Washington Wills.
A Washington will may be revoked by physical destruction of the document (such as through burning or tearing) or by execution of a later will that expressly revokes the prior will or includes inconsistent provisions.ย If a will is revoked, any codicils (will amendments) attached to that will are also deemed revoked.ย If a codicil is revoked, any provisions in a will affected by the codicil are revived unless the testator intended otherwise.ย
A Washington will may be amended through execution of a codicil that satisfies all formalities for execution of a will.ย Informal written changes to an existing will are not sufficient to amend the will.ย ย
If a testator is divorced after executing a Washington will, any provisions in favor of the former spouse are deemed to have been revoked unless the will states an intention otherwise.ย Provisions deemed revoked due to divorce are revived if the testator later remarries the same spouse.ย Any property subject to provisions revoked by divorce is treated as if the former spouse had predeceased the testator.
If a will does not provide for a spouse married by the testator after execution of the willโor a child born to or adopted by a testator after execution of the willโthe surviving spouse or child inherits the same share of the estate he or she would have inherited had the testator died intestate.ย However, a surviving spouse or after-born child does not have a right to share in an estate if the will statesโor other clear and convincing evidence suggestsโthat the omission was intentional.ย
Holographic and Oral Wills.
Washington does not recognize holographic (or handwritten) wills.ย A handwritten will may still be valid, but it must comply with all other formalities (such as witnessing) required to create a valid will under Washington law.
Washington recognizes nuncupative (oral) wills under limited circumstances.ย Nuncupative wills may be made by members of the armed services or merchant marine sailorsโor other individuals if the property at issue is valued less than $1,000โat the time of their last illness.ย Two competent witnesses must hear the statements and testify that the statements were offered by the testator with the intent to create an oral will.ย Proof of a nuncupative will must be provided within six months of the relevant statements, and the substance of the will must be committed to writing.ย Oral wills may only be used for personal property or wages of servicemembers or sailors.
Washington Trust Requirements.
To create a valid trust under Washington law, a grantor must have adequate capacity to create the trust and express an intent to create the trust.ย For revocable living trusts, the standard for determining capacity is the same as the standard for making a will.ย Washington trusts can be created for any lawful purpose that does not violate the stateโs public policy and is possible to achieve.
A Washington trust can be created through transfer of property by a grantor to a trustee (either during life or via a will), a grantorโs declaration that property is owned by the grantor as trustee, or by exercising a power of appointment in favor of a trustee.
The trustee of a Washington trust must have actual duties to perform, and a sole trustee cannot also be a trustโs sole beneficiary. Trustees who manage assets are governed by the โprudent investor ruleโ and must only manage trust assets for the benefit of the trustโs beneficiaries.ย ย
A Washington trust must also have a reasonably ascertainable beneficiary (subject to exceptions such as for charitable trusts and trusts for the care of animals).
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Washington law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence.ย Washington trusts are presumed to be irrevocable unless the trust instrument states that the trust is revocable.
Revocable trusts may be revoked or amended by the grantor either under the method stated in the trust instrument or, if no method is provided, through a written document stating the grantorโs intent to revoke or amend the trust.ย A grantor may also amend or revoke a trust through by execution of a will that references the trust or devises property that would have otherwise been distributed under the terms of the trust.ย
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Simplified Probate:ย Washington provides a simplified probate process for small estates (defined as probate assets of $100,000 or less in value) to skip some of the normal probate procedures.ย The inheritor of a Washington decedentโs property may complete an affidavit stating that he or she is entitled to possession of an asset, that the estate qualifies for simplified probate, and that certain claims relating to final expenses have been satisfied.ย When completed, the affidavit authorizes the current possessor of the asset to turn it over to the heir outside probate.ย In general, Washingtonโs standard probate process has a reputation for being simpler and less expensive than probate in many other states.ย ย
Community Property:ย Because Washington is one of the nationโs few โcommunity propertyโ states, a married individualโs assets often include a significant amount of marital property jointly owned by the couple.ย Community property includes most assets acquired by either spouse during the marriage, unless obtained via gift or inheritance.ย If a decedent spouse is intestate, his or her half-interest in the coupleโs community property will be inherited by the other spouse.ย A spouse can also dispose of his or her half-interest in community property and separate (non-community) property by will.ย
Non-Probate Transfers:ย Along with living trusts, Washington provides several additional options for transferring assets outside probate.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Washington does not recognize tenancy by the entiretiesโa form of co-ownership between spouses recognized in many other states.ย ย
Spouses in Washington can enter into community property agreements, which provide that, upon a spouseโs death, some or all of a spouseโs separate assets become community property.ย The agreement allows a decedent spouseโs assets to transfer to the surviving spouse outside probate.ย ย
POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer to a beneficiary upon an ownerโs death, can also be used in Washington for many assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Transfer-on-Death (TOD) Deeds:ย Washington is among the minority of states that recognize TOD designations on real estate deeds.ย Ownership of real property with a TOD designation automatically transfers to the named beneficiary upon the ownerโs death, avoiding the need for probate.ย Washington does not recognize TOD designations on vehicle titles.
Estate Tax:ย The State of Washington is part of the relatively small minority of states that still have a state-level estate tax.ย Washington estates valued over $2,193,000 qualify for the estate tax.ย The tax is assessed on amounts over the limit at rates progressing from 10 โ 20%, depending on the total estate value.ย Unlike the federal version, Washingtonโs estate tax does not allow for portability of estate tax exemptions between spouses.ย Washington does not impose an inheritance tax.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
