No Will? Part XI: “We’ve Got This Covered.”

By October 4, 2016 No Comments

andy-arthur-on-flickrThis blog series explores the problems and complexities that may occur when someone dies without a Will. Prior posts discussed the process for appointing an estate Administrator, the authority that an Administrator may or may not have, whether the Administrator may be required by the court to furnish bond, and an overview of intestate succession and inheritance laws that apply to people who die without Wills. In blog posts five through eight, I discussed the details of intestate succession in terms of the distribution to a surviving spouse, a registered domestic partner, or a live-in romantic partner, and what happens in relation to the rest of your family if you don’t have a Will. My most recent two blog posts explored the family support statutes.

Frequently, in my firm’s estate planning and probate practice, our potential clients will say something to the effect of “We’ve got this covered.” Meaning, they believe that, once their loved one dies, they can simply decide as a family how to handle it. This line of thinking goes, “There’s no reason to have a lawyer involved. Because it’ll be fine, and we all get along.” Let me briefly outline why that strategy often is, bluntly put, a failed strategy:

  • Absent the court appointing an Administrator to manage the deceased person’s estate, as evidenced by certified letters of administration, the family will likely not be able to accomplish certain necessary tasks on their own, such as transferring titles to accounts and to real property.
  • As described in previous blog posts, the Washington statutes concerning intestate succession govern how the deceased person’s property needs to be distributed if there’s no Will. The family lacks the legal authority to change that statutory distribution, absent a valid Nonjudicial Dispute Resolution Agreement entered into pursuant to Washington’s Trusts and Estates Dispute Resolution Act (TEDRA). If they try to skirt the law, bad results could ensue – including negative gift tax consequences if the unlawful distributions are deemed to constitute a gift but the proper tax returns are not filed in association with that gift.
  • When money and tangible assets are involved, the “we all get along theory” often doesn’t work out too well in reality. Family members frequently argue over what they believe a “fair” distribution of the property should be, based on a wide variety of factors including the comparative economic positions of family members and the history of financial transactions between them.

All of these problems can often be avoided by working with your attorney to get a Will into place. Then, maybe you’ll be right, and you actually will “have it covered!”

Photo credit: Andy Arthur on Flickr

Read the final post in this series here.

This 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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