Do You Need a Will or a Trust in Washington?

What a will does, and what it cannot reach

A will says who receives your probate property, names the person who will administer your estate, and nominates a guardian for your minor children. Under RCW 11.12.010, any person of sound mind who has reached eighteen may dispose of an estate by will.

What a will cannot reach is property that passes by operation of law the instant you die. Your 401(k) goes to whoever is named on the plan's beneficiary form, a payable-on-death account goes to the named payee, and community property subject to a community property agreement vests in the surviving spouse with no court involvement at all. A will governs what is left over, which for many Washington households is a surprisingly small slice.

How a will has to be signed in Washington

The rules for signing a will are less intuitive than people expect, and they are set out in RCW 11.12.020. The will must be in writing and signed by the testator, or by another person at the testator's direction and in the testator's presence. It must then be attested by two or more competent witnesses, who sign in the testator's presence and at the testator's direction.

Washington does not require the testator to sign in front of the witnesses, nor the witnesses to sign in front of each other. It does require that the witnesses sign within the testator's line of vision. A handwritten will with no witnesses is invalid if executed here, though Washington recognizes one validly executed under the law of the place of signing or of the testator's domicile.

The companion provision is RCW 11.20.020(2), which lets a witness sign a sworn affidavit reciting what the witness would otherwise testify to in court. That affidavit, written on the will or attached to it, is what makes a will self-proving, and its value is that it stops mattering whether your witnesses can be found decades later.

Is a revocable living trust worth it in Washington?

Sometimes, and less often than the seminar circuit suggests. The usual pitch is probate avoidance, and that pitch was written for states where probate is slow and expensive. Washington is not one of them. The WSBA's estate planning deskbook puts it plainly: Washington's nonintervention probate procedure has simplified probate here so that living trusts are not as commonly used, and the expense of funding a trust is itself a reason they see less use in a state where probate costs are relatively low.

There are real reasons to use one. Real estate in another state would otherwise require a separate probate there. A beneficiary with a disability, a blended family, a closely held business, or a child whose inheritance needs managing rather than handing over all call for work a will cannot do. A trust also stays out of the public court file.

What a trust does not do is eliminate creditor exposure. If your assets sit in a revocable trust and nobody opens a probate, creditors have twenty-four months from your death to come forward. Chapter 11.42 RCW provides a notice-agent procedure that compresses that window, but somebody has to know it exists.

The community property agreement: Washington's quiet workhorse

Washington is a community property state, and RCW 26.16.120 gives married couples a tool most states lack. A community property agreement can characterize property as community and provide for its status or disposition on the death of either spouse. In its common form it vests all community property in the survivor at the first death, with no probate.

The execution formalities are stricter than those for most estate planning documents. RCW 26.16.120 requires that provisions disposing of community property at death be in writing, signed by both spouses, and witnessed and acknowledged in the same manner as a deed to real estate. The statute also provides that the agreement "shall not derogate from the right of creditors," so it is not an asset protection device.

A second benefit has nothing to do with probate. Under I.R.C. § 1014(b)(6), both halves of community property take a new income tax basis when either spouse dies, not just the deceased spouse's half. For a couple holding appreciated real estate or securities, that feature alone is often worth more than everything else in the plan.

The hard limit is that the agreement reaches community property only. The Court of Appeals has invalidated provisions dividing a blended family's assets at the second death, because after the first death no community remains to operate on.

Your beneficiary designations are already overriding your will

Washington's "super will" statute, RCW 11.11.020, lets a will redirect certain nonprobate assets, but only if the will specifically refers to the asset. A residuary clause does not do it. In one case a reference to "certain bank accounts and savings accounts" held in joint names was held not to include payable-on-death accounts. And under RCW 11.11.020(4), a will can only preempt a designation already in place when the will was signed. Change the form afterward and the form wins.

Powers of attorney and health care directives

The documents that matter while you are alive get the least attention. Washington's Uniform Power of Attorney Act, Chapter 11.125 RCW, requires that a power of attorney be signed and dated, and either notarized or attested by two or more competent witnesses who are not the principal's caregivers. RCW 11.125.050(1).

Two traps live in that chapter. A power of attorney is durable, meaning it survives your incapacity, only if the document says so. RCW 11.125.040. One that is not expressly durable terminates at the moment it becomes necessary. And authority over health care is not swept in by a general grant of broad authority; RCW 11.125.240(1)(l) requires express authorization. The separate health care directive comes from Washington's Natural Death Act, Chapter 70.122 RCW, which addresses life-sustaining treatment in a terminal or permanent unconscious condition and carries its own restrictive witness rules. RCW 70.122.030(1).

Where this goes wrong

Four failures account for most of the damage.

The trust nobody funded. A revocable trust controls only assets actually titled in its name. People sign a beautiful trust instrument, never transfer the house or the brokerage account, and die with an empty trust and a pour-over will. Washington validates those pour-over gifts under RCW 11.12.250, so the plan does not fail outright. It just produces the probate the trust was bought to avoid.

The ex-spouse on the retirement account. RCW 11.07.010 revokes a nonprobate beneficiary designation in favor of a former spouse when a marriage ends, and many people assume that solves it. It frequently does not, because the United States Supreme Court has held that ERISA preempts that statute where the asset belongs to an ERISA-governed plan. Your employer's 401(k) and group life insurance are those plans, and the administrator pays whoever is on the form.

The online will that was never properly witnessed. The document is usually fine; the execution is what fails. In one case the witnesses signed only the self-proving affidavit and not the codicil, and the court held that did not satisfy RCW 11.12.020. The statute was later amended to let a witness sign either the will or a conforming affidavit, but the testator's signature still has to appear on the will itself. These mistakes surface when the signer is gone.

Assuming the will controls everything. The gap between what people think their will governs and what it actually governs is where litigation is born.

Does Washington have its own estate tax?

Yes, and it is separate from the federal one. Washington enacted a standalone estate tax in 2005, codified at Chapter 83.100 RCW, which has operated independently of federal changes since. The Washington exclusion amount is lower than the federal exemption, so families who owe nothing federally can still owe Washington tax. Portability does not apply here either, meaning a surviving spouse does not inherit the deceased spouse's unused Washington exclusion the way the federal system allows. The exclusion figure is adjusted over time and has been amended by the Legislature, so the current number is worth confirming rather than assuming. A return is due within nine months of death. RCW 83.100.050(2).

Planning for minor children

You can nominate a guardian for your children in your will, and you should, though a court still has to appoint. The harder question is who manages the money and on what terms, because a child who inherits outright receives everything at eighteen, in one piece.

Why this is lawyer work

The drafting is not the hard part. The hard part is inventory and coordination. Before a document gets written, somebody has to establish how every asset is titled, what every beneficiary form says, whether a community property agreement from a previous decade is still operative, and whether separate property has been commingled without anyone intending it. Those answers determine which documents you need, and reversing the order is how people end up with an elegant plan governing a fraction of what they own.

About my practice

I am an independent attorney in downtown Spokane, and estate planning and probate together are a substantial part of my practice. I prepare wills, revocable and irrevocable trusts, community property agreements, powers of attorney, and health care directives, and I handle the probates and estate disputes that follow when planning was not done or did not hold. I am admitted in Washington and in Oregon, which matters for Inland Northwest families holding property on both sides of the Columbia. Spokane County estates are administered in Spokane County Superior Court.

Talk to me

If you are not sure whether your current documents still do what you think they do, that is a short conversation and worth having. I offer a free initial consultation by appointment at my office in downtown Spokane.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.