Do I Need a Will or Trust in Washington State?

If you’re just starting to think about estate planning in Washington state, you might be wondering whether you should use a will, or a trust, or both. When estate planning, there are many tools available to help you distribute your estate to beneficiaries, protect your legacy, make your wishes clear, and manage end-of-life planning. Two of the most used estate planning tools are wills and trusts.

While you do not legally need a will or trust in Washington state for your assets to be distributed to beneficiaries, in most cases, estate planning is advisable. When a person dies without a will or trust in Washington state, their estate will be distributed to heirs or beneficiaries under Washington intestate laws (RCW 11.04.015). If you pass away intestate, the state might need to distinguish between separate and marital property and then divide this property to your spouse and children in accordance with state law. As collaborative divorce lawyers, we see firsthand how complicated distinguishing between marital and separate assets can be. And this is just one of the issues your loved ones could run into if you pass away intestate—that is, without a last will and testament.

Most people need an estate plan to avoid the unknowns and potential legal complications that can occur when a person passes away intestate.

Once you’re ready to start estate planning, your next step will be to decide what kind of estate planning tools to use. Choosing between a trust or a last will and testament is not always clear-cut.

Trusts are not just for the wealthy. If you have a spouse or child with special needs, a special needs trust might protect your beneficiary’s government benefits, while letting your loved one access their inheritance to cover additional expenses. And if you have pets, a trust can be an important tool for designating caretakers, getting specific about the care you want your pet to receive, and setting aside money for vet bills and other expenses. A trust can also be a more seamless alternative to using a financial power of attorney. And if you want to help your family avoid court and the probate process after you pass away, a trust is one way you can keep your estate out of court.

Wills are more straightforward estate planning tools, but you can do way more than just list assets and beneficiaries in your will. If you have minor children, you can name a guardian, and plan for their ongoing care,

So, while a will or a trust isn’t legally required in Washington state, an estate plan that utilizes a will or a trust, or both, can offer you and your family important protections. Some of the protections offered by estate planning tools like wills and trusts include:

• Clarity about your wishes and what you would like each of your beneficiaries to receive.
• Protection from potential legal issues. Wills and trusts offer various degrees of protection, depending on your concerns.
• Peace of mind when it comes to important decisions about who would care for your children if you and your spouse were to pass away and who will care for your pets after you pass away.
• End of life planning so that loved ones know what to do if you cannot make medical or financial decisions on your own.

The Seattle, Washington estate planning lawyers at Truce Law help families navigate the challenges of estate planning. As collaborative family lawyers, we bring a collaborative approach to estate planning, helping families find estate planning tools to help them avoid court and probate as much as possible, while also helping families approach their end-of-life planning collaboratively, thus avoiding conflict and surprises.

Let’s start by exploring the differences between wills and trusts, the pros and cons of each.

When Should I Create a Will in Washington State?

Your will is the foundation of any estate plan, and even if an estate plan utilizes a trust, or multiple trusts, most estate plans will have a last will and testament. It is never too soon to start estate planning. We don’t often like to talk about dying, but if you were to suddenly pass away, have you clearly designated who will care for your minor children, and have you made your wishes clear regarding how you want your assets distributed?

Your last will and testament in Washington state is a legal document that provides an inventory of your assets and property, names beneficiaries who will receive your assets and property, and names an executor to oversee the distribution of your estate. In Washington state, you can also name a guardian who would care for your minor children if you were to pass away. If you have pets, you can designate a caretaker for your pets after you pass away and even leave money for this caretaker to help them care for your pets.

Washington state wills are often accompanied by advanced directives that include living wills and powers of attorney for healthcare and finances.

In a living will, you outline the kind of medical care you’d like to receive if you are no longer able to make medical decisions on your own behalf. For example, would you like to have a do-not-resuscitate order in place? What kind of life-saving measures would you like medical personnel to take or to not take? LGBTQ+ individuals can also use a living will to specify the kind of gender affirming care they’d like to receive if they are no longer able to make their own medical decisions (for example, ongoing hormone treatment).

Powers of attorney for healthcare and finance give a trusted family member or designated individual the legal ability to manage your finances and your healthcare decisions if you are no longer able to make them.

Think of a living will as the instructions and the power of attorney as the right to carry them out.

When you pass away, the person you name as an executor will, in most cases, need to submit your last will and testament to the court to open probate. If you have less than $100,000 in assets and property, your executor may be able to avoid probate.

While there are many last will and testament templates available online, nothing can replace working with an estate planning lawyer to help you craft a last will and testament that specifically addresses your needs and concerns. While simple, a last will and testament is a powerful estate planning tool. The Washington state estate planning lawyers at Truce Law can help you write a last will and testament and develop an end-of-life plan that meets your needs.

When Do I Need a Trust in Washington State?

A trust is a legal structure where a trustee holds assets for a beneficiary. Think of a trust like a vault with a security guard who has been given specific instructions about when to release the money or property, how much money to release at any given time, and for what purpose, and to whom. The security guard in this example is the trustee, and the beneficiary is an heir, like your children or spouse.

Trusts give you greater control over how your estate is managed after you pass away. If you don’t want your college-aged children getting access to their whole inheritance all at once, there’s a trust for that.

Trustees can be family members, lawyers, accountants, financial advisors, banks, and other trust management professionals. Trusts can be more expensive to manage than a last will and testament because they require oversight, and often are often best managed by professionals, who charge a fee.

There are many benefits to using a trust rather than a last will and testament

• A trust can protect your assets from creditors, lawsuits, and even be used for tax planning purposes.
• A trust can be used to help your family avoid probate, or the courts, after you pass away, especially if your assets exceed certain thresholds.
• If you own assets or property in multiple states, a trust can help your family avoid having to open probate and court cases in multiple states.
• A trust can be used instead of a financial power of attorney and can often be more seamlessly managed than a power of attorney.
• Trusts can protect a special needs beneficiary from losing their government benefits when you pass away.
• A trust can give you greater control about how money is distributed to beneficiaries. If you are concerned that your loved one might spend all their money at once, or want to help younger beneficiaries maintain a budget, a managed trust can specify how money can be withdrawn and used.
• If you have a spouse who isn’t a U.S. citizen, or a spouse or child with creditors or financial issues, a trust is one way you can protect their inheritance.

Trusts are also used by individuals with more significant estates, high net worth, or those who own property in multiple states.

Trusts vs. Wills: Pros and Cons

Here are the benefits of choosing a will as your primary estate planning tool

• Affordable and Simple. A last will and testament is a relatively straightforward document that you and your estate planning lawyer can usually put together affordably and relatively quickly (for most estate planning situations).
• Flexible. Easy to modify if changes are required.
• Breadth. Allows you to cover a great deal of estate planning ground in one document: name guardians for your minor children and name caretakers for your pets, for example.

Let’s talk about the benefits of choosing a trust as your primary estate planning tool

• Asset Protection and Tax Strategy for Higher Net Worth Estates. Trusts can offer tax protections and asset protections from creditors and help families with high-net-worth estates manage estate taxes and transfers of wealth.
• Asset & Benefit Protection in Other Situations. If your spouse or child has special needs, a special needs trust can protect their government benefits. If your beneficiaries have issues with creditors or debt, a trust might be able to offer some asset protection.
• Greater Control. Trusts provide added control over how money is used. For example, if you create a trust for your pet, you can get very specific about how money in the trust should be used to care for your pet (down to the food you want purchased, and how often they should be groomed).
• Beneficiaries Can Avoid Probate and Protect Privacy. A trust doesn’t need to go through probate. This can protect your loved one’s privacy after you pass away and protect the privacy of your estate.
• Multi-State Estates. If you own property in multiple states, a trust can help your beneficiaries from having to open probate in multiple states.
• Reduce or Eliminate the Need for Financial Powers of Attorneys. Many trusts are structured to seamlessly let beneficiaries take over if you pass away or become incapacitated.

Here are the downsides of using a last will and testament as your primary estate planning tool

• Risk of User Error. The simplicity of writing a will using online templates and the ease of making changes can lead to situations where details get missed, or version control gets murky. Even if your situation seems simple, it’s still a good idea to either work with an estate planning lawyer to write your will, or have your will reviewed by an estate planning attorney before you notarize and sign it.
• Probate Can Be a Hidden Cost. If your estate is worth more than $100,000, your beneficiaries will need to take your will to probate. This court process, by which a will is validated by the court, and through which creditors have a chance to make claims, can sometimes get complicated and expensive. If disputes arise, probate can take months or even years. And if you own property in multiple states, your family members might need to initiate multiple probate proceedings in multiple jurisdictions. While writing a will might save you money now, choosing a trust could potentially save your beneficiaries money and aggravation later.
• Public. Everything that happens in court during probate goes on the public record.
• Limited Tax and Creditor Protections. Probate opens your estate to creditor claims and may not offer as robust tax protections as trusts.

And here are the downsides of using a trust as your estate planning tool

• More Expensive. Trusts have initiation fees, cost more than a will to set up, and require ongoing management. In general, it’s a good idea to have your trust managed by a professional, and professionals will charge ongoing fees for management.
• Inflexibility. Depending on the trust you choose, you may not be able to make changes once the trust has been established.
• Limited Scope. You cannot name a guardian for your children in a trust or provide instructions for medical care if you become incapacitated in a trust. If you use a trust as your primary estate planning tool, you’ll still likely need a last will and testament to cover matters not handled by the trust.

High net worth individuals with complicated multi-state estates will often implement a complex estate planning strategy that might involve the use of trusts, a will, living wills, and powers of attorney.

For simpler situations, a last will and testament, a living will, and comprehensive power of attorney is usually sufficient. Most people will only require the latter.

The best way to decide? Speak to an estate planning lawyer in Seattle, Washington. Truce Law is here to help with a Case Evaluation.

What Happens When Someone Dies Without a Will or Trust

What happens if you do nothing?

When someone in Washington state dies without a will or trust, their estate will be distributed based on Washington’s intestate law.

If you don’t have a will or trust and pass away in Washington state, this is what can happen:

• Your estate gets distributed to beneficiaries based on state inheritance law and not based on your specific wishes. Your property will be divided between your spouse and your surviving children, if you have children. The law governs exactly what percentage each party will receive depending on who your surviving beneficiaries are.
• Issues can arise if you own property in other states because each state’s intestate laws would govern how your property would be distributed. This could result in a situation where your beneficiaries would have to potentially open probate in multiple states. A trust could protect your beneficiaries from this issue.
• Even more complications can arise if you own significant separate property but are also married or in a domestic partnership. Disentangling marital and separate assets in an estate isn’t always straightforward. In the worst-case scenario, your spouse and children or even your parents could end up in court trying to distinguish between marital and separate property.
• When you pass away without a will or trust, your pets will be treated as property and inherited according to intestate laws.
• If you have children and haven’t named a legal guardian, or no family guardian comes forward, your children might end up in the state child welfare system.

What happens after you pass away depends on whether you are married or have a domestic partner, whether you have children, and whether your parents are still alive.

If your only surviving beneficiary is your spouse, then your entire estate will go to your spouse or domestic partner.

But things can get complicated if you have children or surviving parents and were also married or had a domestic partner. This is because the state of Washington will then need to determine what property in your marriage was your separate property and what property was community or shared marital property.

If you pass away intestate, your estate (property, assets, and debts) will be divided into two categories, community or marital property and separate property. Your spouse will be entitled to receive all community or shared marital property, even if you have children or surviving parents, but if you pass away intestate and have children or surviving parents, shares of your separate property will go to different beneficiaries.

If you have surviving children, one half of your separate property will go to your children, and the remaining half will go to your surviving spouse.

If you don’t have children, but have surviving parents, or siblings, then three quarters of your separate estate will go to either your parents, or to your surviving siblings.

As any family or divorce lawyer will tell you, distinguishing between marital and separate property isn’t always a straightforward process.
In general, separate property is property you owned prior to your marriage, any property you received as a gift or inheritance during your marriage, any income or profit you earned from separate property, or any property designated separate due to a prenuptial agreement (RCW 26.16.010).

Shared or community property is any property, income, or debts “acquired after marriage” (RCW 26.16.030). Marital property includes income earned during the marriage, including stock options and retirement benefits. Real estate purchased during the marriage using only marital funds would generally be considered shared or community property. Debts acquired during the marriage would also be considered shared.

Issues with intestate inheritance can arise when a married couple has significant debt, but the deceased person has significant separate assets. Debt collectors might try to find ways to show that the separate assets were marital assets so that they can collect on these debts.

Issues can also arise when a person passes away intestate if separate property and shared property get comingled during marriage. Comingling of assets happens often and can create complications in determining what property is separate or shared. Something as simple as putting your partner’s name on the deed to a home you purchased before you got married, or putting separate funds in a shared bank account could be seen as a gift to your spouse in the eyes of the law.

Comingling can also occur when couples make shared investments. One of the more common investments couples make after marriage is purchasing a family home. Let’s take an example where one spouse contributes $50,000 from money they saved prior to getting married for a down payment on a home. $50,000 of the home’s equity would generally be considered this spouse’s separate property. Similarly, if one spouse contributes $50,000 from their inheritance to make a down payment on a family home, the $50,000 they contributed from their inheritance would be considered their separate property.

If you don’t have a spouse, then your estate will go to your children, then to your parents if you don’t have children; then to your siblings if you don’t have surviving parents; and then the line succession goes to grandparents, and more distant relatives.
Having a will or trust, or another estate plan in place offers greater clarity to your beneficiaries, protection from probate or issues with the court, privacy from probate if you choose a trust, and peace of mind that your wishes and legacy will be protected after you pass away.

Next Steps

If you’re new to the estate planning process, it can understandably feel overwhelming. The Washington state estate planning lawyers at Truce Law are here to make the process as simple as possible. As collaborative lawyers, our goal is to achieve low-conflict legal outcomes. We also strive to help our clients avoid court during probate, even when clients only use a last will and testament as their primary estate planning tool.

One of the challenges of estate planning when you have children from a prior marriage involves deciding who gets what without alienating your spouse. The collaborative attorneys at Truce Law are skilled at conflict resolution, negotiation, and peaceful communication, and can help you have these tough conversations.

If you’re interested in exploring how the collaborative process can make your estate planning go more smoothly, reach out to Truce Law, collaborative estate planning lawyers in Washington state today.

This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.