Wills, Trusts & Probate

Each person has a choice either (1) to create a Will providing a directive on how her/his estate shall be divided between heirs and who those heirs are; or (2) rely on our laws to divide her/his estate.

A well-constructed Will can reduce expenses and simplify legal proceedings. By using a Will you will tell the court your wishes on how your estate should be divided. You will nominate a personal representative you trust and who you know will be settle the estate efficiently and cost effectively.

If you die without a Will (intestate), the court will follow Washington statutes when determining how your estate should be divided. RCW 11.04 governs distribution of estate when a person dies intestate. And the court will appoint your Personal Representative, who might not be a person you trust to distribute your estate. See RCW 11.28.120 for the state's priority list.

Our office will help you to create a Will, if you need one, or to guide you through probate process.

For additional free information please check out Senior Services. Senior Services is a non- profit agency serving older adults. Their volunteers will be able to give you general information on Wills, Estate Planning and Probate issues. Please visit Senior Rights Assistance.

How is estate distributed, if a person dies without a Will?

If a person dies without a Will, distribution of her Estate will depend on the following circumstances:

1. Only the spouse is alive. The deceased does not have any biological or adopted children, parents, and biological or adopted siblings:

In that case, the surviving spouse will receive everything.

2. If the spouse and biological or adopted children are alive:

The spouse will receive the following:

  • ½ (50%) of the community property of the spouses.
  • ½ (50%) of the estate of the deceased spouse. The estate includes ½ (50%) of the community property of the spouses and all separate property of the deceased spouse

The alive biological or adopted children of the deceased will receive equal shares of the following:

  • ½ (50%) of the estate of the deceased spouse.

3. If the spouse, parents of the deceased and biological or adopted siblings are alive:

The spouse will receive the following:

  • ½ (50%) of the community property of the spouses.
  • ¾ (75%) of the estate of the deceased spouse.

The remaining ¼ (25%) of the estate shall be divided in equal shares between the alive parents of the deceased and biological or adopted siblings.

4. If the deceased does not have a spouse or natural or adopted children, the entire estate is distributed to the nearest surviving blood relative.

Statutory language is available at RCW 11.04.015.

Wills and Last Testaments

A Will or Testament is a legal document by which a person, the testator, tells the beneficiaries as to how his or her property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.

RCW 11.12 explains how Wills work, who can make a Will, how it should be made, and other issues related to the Wills.

A Will could be made by any person “of sound mind who has attained the age of 18 years.” RCW 11.12.010. That person is called a “testator.”

To be valid a Will must conform to the following rules:

  • It must be in writing;
  • It shall be signed by the testator or by some other person under the testator's direction in the testator's presence. When the Will is signed not by the testator herself/himself, that person must sign his/her own name to that Will and state that “he or she subscribed the testator’s name at his or her request.” Such signature is not required if the testator can mark the Will in the approval. The mark does not have to be a signature.
  • It shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request.

Health Care Directives

Health Care directive is a legal document that “directs the withholding or withdrawal of life-sustaining treatment in a terminal condition or permanent unconscious condition.” RCW 70.122.03

By definition Health Care Directives come into play if a person is in a terminal condition or permanent unconscious condition. The diagnosis of a terminal condition is done by the attending physician and the diagnosis of a permanent unconscious condition is done by two physicians. Both diagnosis must be entered in writing and made a permanent part of the patient’s medical records.

The Health Care Directive must be made in writing with a notary public presence and in the presence of two witnesses. It is important to know that those witnesses must not be related by blood or marriage (cannot be a spouse, children, parents or other relatives), and the witnesses must not be entitled to any portion of the estate of the declarer under any Will, or Codicil or by operation of law then existing. Additionally, witnesses cannot be the attending physician, an employee of the attending physician or a health care facility in which the declarer is a patient.

The Directive, or its copy, must be made part of the patient’s medical records and must become a part of the records of the health care facility where the withholding or withdrawal of life-support treatment is contemplated.

The Directive can be changed or terminated any time by the patient.

In is important to know that Health Care Directives will not prevent help during emergency situations. Usually because during emergencies there is not enough time for emergency service personnel to consult the patient’s Health Care Directives. Once the patient is under the direct care of a physician, the desires expressed in Health Care Directives will be honored.

For persons with serious health conditions, there is a form in Washington State that applies to emergency situations. It is known as Physician Orders for Life Sustaining Treatment. It can be found here. From Grey’s Anatomy, we know about existence of Do not Resuscitate form, which is provided in the hospitals. This new POLST form replaced DNR in almost all WA hospitals.

Durable Power of Attorney

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