What happens if I don’t have a Will? by Stacey Romberg, Seattle

Posted by on March 22nd, 2011

If you don’t have a Will, your assets will be distributed by a process known as intestate succession. Intestate means “without a Will.”

In essence, if you are married, an initial analysis will be made of which assets are community property and which are separate property. In Washington, a presumption exists that all of your assets are community property.

If you are single and not in a domestic partnership, then all of your assets will be separate property. Once the property is divided up according to its community or separate character, then it will be distributed pursuant to the statute listed in the second half of this article.

Without a Will: You will not be able to choose how your property will be distributed.

A benefit of a Will: it allows you to decide how your assets will be distributed at death.

In a Will, you choose who the personal representative will be. The personal representative is the person who administers your estate and makes the necessary decisions.

The surviving spouse always retains the right to administer the community property. Beyond that, a judge will simply have to guess as to which person would be appropriate to administer your affairs.  Sometimes, families fight over these issues, creating both bad family relationships and dramatically increasing the costs of distributing your assets.

Without a Will: You cannot choose who will administer your estate.

A benefit of a Will: It lets you choose who will be in charge of your estate.

A Will enables you to give your domestic partner a distribution from your estate, and to allow your partner to administer your estate. If you are gay, or in an unmarried heterosexual relationship, your relationship is not given the same legal recognitions and protections as if you were a married heterosexual. So you need to prepare a Will in order to create those protections.

Without a Will: Your domestic partner will have few, if any, legal rights upon your death.

A benefit of a Will: People who are in gay or unmarried heterosexual relationships have a greater need to prepare a Will since it gives them legal protections and rights.

If you have minor children, a Will allows you to nominate a Guardian for them in case both parents die. It also allows you to create a trust for them, so your assets will be distributed to them in the way that you choose.  You can spread out the distributions over time, allow special distributions for educational purposes, etc. Otherwise, your children will likely receive those assets in a lump sum once they turn eighteen.

Without a Will: It is difficult to nominate a Guardian to care for your children upon death; and to designate how your assets will be distributed to your children.

A benefit of a Will: It’s a responsible step when you have children, so you can nominate a Guardian and choose how your assets will be distributed to them.

This process of “intestate succession” or “dying without a Will”  is governed by the following statute:

RCW 11.04.015
Descent and distribution of real and personal estate.
The net estate of a person dying intestate, or that portion thereof with respect to which the person shall have died intestate, shall descend subject to the provisions of RCW 11.04.250 and 11.02.070, and shall be distributed as follows:

(1) Share of surviving spouse. The surviving spouse shall receive the following share:

(a) All of the decedent’s share of the net community estate; and

(b) One-half of the net separate estate if the intestate is survived by issue; or

(c) Three-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents, or by one or more of the issue of one or more of his parents; or

(d) All of the net separate estate, if there is no surviving issue nor parent nor issue of parent.

(2) Shares of others than surviving spouse. The share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, shall descend and be distributed as follows:

(a) To the issue of the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or if of unequal degree, then those of more remote degree shall take by representation.

(b) If the intestate not be survived by issue, then to the parent or parents who survive the intestate.

(c) If the intestate not be survived by issue or by either parent, then to those issue of the parent or parents who survive the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or, if of unequal degree, then those of more remote degree shall take by representation.

(d) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents who survive the intestate, then to the grandparent or grandparents who survive the intestate; if both maternal and paternal grandparents survive the intestate, the maternal grandparent or grandparents shall take one-half and the paternal grandparent or grandparents shall take one-half.

(e) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents or by any grandparent or grandparents, then to those issue of any grandparent or grandparents who survive the intestate; taken as a group, the issue of the maternal grandparent or grandparents shall share equally with the issue of the paternal grandparent or grandparents, also taken as a group; within each such group, all members share equally if they are all in the same degree of kinship to the intestate, or, if some be of unequal degree, then those of more remote degree shall take by representation.

[1974 ex.s. c 117 § 6; 1967 c 168 § 2; 1965 ex.s. c 55 § 1; 1965 c 145 §
11.04.015. Formerly RCW 11.04.020, 11.04.030, 11.04.050.]

This blog post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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Stacey L. Romberg
Attorney at Law

10115 Greenwood Avenue N.
PMB #275
Seattle, WA 98133
Phone: 206-784-5305
Fax: 206-789-8103
E-mail: inquiry@staceyromberg.com





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