Elements of a Valid Will in Washington State
Requirements of A Valid WillThe basic requirement for a valid will is that the testator is of sound mind and at least 18 years old.
A testator is deemed to be of sound mind if;
a) the testator understands that he or she is executing a will that will dispose of the testator's property at death;
b) the testator understands the nature and extent of the estate; and
c) the testator recollects who comprises his family.
Eccentricity, unusual beliefs or strange habits are not enough to invalidate a will.
Who needs to sign the will?Obviously the testator needs to sign the will for it to be valid, but there also needs to be at least two witnesses who can testify that the will was voluntarily signed by the testator.
A holographic will is one which is signed by the testator but not witnessed by others. Generally speaking, holographic wills are not valid in Washington. There is an exception to this rule. Some states, such as California do recognize holographic wills as valid. If the will was executed in a state that allows holographic wills, that will will be be valid in Washington even though it wasn't witnessed by anyone.
What about omitted spouses and children?The testator signs a will as a single person and subsequently gets married and has children. Since the will doesn't reflect these new family members, does that mean that they are left out of the will? No.
Washington law treats the situation where there is an omitted spouse the same as if the testator had passed away without a will. This means that under Washington laws of intestacy, the omitted spouse would receive one half of the community property and one half of the testator's share of the community property.
As for omitted children, the same rules apply. The omitted child(ren) who were born after the will was executed would receive their share under the intestate rules.There are some special situations where a provision may have been made for an unborned child, in which case the intestate rules would not apply. An exception to this rule applies where the child was born before the will was executed, in which case the presumption is that the omission was intentional.
Types of BequestsThere are three ways that bequests can be made.
1) A specific bequest is where the testator leaves a specific item to a specific person. For example, Testator leaves his coin collection to Tommy. This type of bequest requires the asset to be in the testator's estate at the time of death. If the coin collection had been sold, Tommy gets nothing.
2) A general bequest is where the the specific assets bequeathed have to be paid regardless of whether or not the items were in the estate at the time of death.
3) A residuary estate is where the remaining items are distributes once the specific and general bequests have been satisfied.
How are Bequests Made?There are several ways that bequests can be actuated, the selection of which, is important in drafting the will.
The simplest type of bequest is a simple transfer of the asset to the beneficiary
A slightly more complex form of bequest is where the bequest is placed into trust for the beneficiary Trusts can be used where the bequest is to a minor, or where there are tax planning advantages for transferring the asset through the trust mechanism.
The details of a trust are beyond the scope of this legal guide. Basic trust information can be found in my legal guide entitled, A Basic Guide for Trusts in Washington State.