Intestacy - The State already has a will for you on the books
One of the common questions asked estate attorneys is "Do I need a will?" My typical response is "You already have one. The question is do you like it or do you want to change it."
Since creating a will neither avoids probate nor reduces estate taxes, individuals satisfied with the results of Washington's default intestacy rules and the length of time involved in the probate process could rely on intestacy statutes to allocate their property at death. Intestacy rules primarily concern community property, individual or separate property and kinship groups.
Intestacy rules on Community Property
Upon death, one-half of the decedent's community property passes to the spouse by operation of community property law. The other one-half is subject to testamentary disposition or intestate distribution. Intestate distribution passes the second one-half share of community property to the surviving spouse in addition to the one-half share that passed under community property law. In contrast to rules governing separate property, all intestate community property passes to the surviving spouse regardless of whether the decedent is survived by issue, parents, or other relatives. [RCW
The whole of the community property is subject to probate administration, including the payment of obligations and debts of the community, the award in lieu of homestead, the allowance for family support, and any other matter for which the community would be responsible or liable if the decedent were living. [RCW ?11.02.070]
Intestacy rules on Separate Property
A surviving spouse receives the entire net separate property if the decedent has no issue, three-quarters of the net separate property if the decedent has no issue but is also survived by parents or issue of parents, and one-half of the net separate property if the decedent is also survived by issue.
Shares of the net separate property not distributable to the surviving spouse, or if there is no surviving spouse, are distributed equally if the surviving relations are in the same degree of kinship but by representation for those of unequal degree. [RCW ?11.04.015]
For example, split assets kids, if no kids then parents, if no parents then siblings, then grandparents and outward in degress of relationship until they find the nearest living relative(s).
Intestacy if no living relatives (Escheat)
Whenever any person dies leaving property subject to Washington jurisdiction and without being survived by any person entitled to it under Washington laws, such property is designated escheat property and becomes property of the state of Washington. [RCW ?11.08.140]
Property escheats to Washington rather than the state where the decedent was domiciled at the time of death. [O'Keefe v. State]
A stepchild or foster child has no right to inherit via intestacy from a stepparent or foster parent who is not related by blood. However, if no blood relatives of the decedent survive, a stepchild (but not foster child) can inherit to avoid escheat. [RCW ?11.04.095]
Additional resources provided by the author
For more information see my Guide "A Beginner’s Guide to Asset Protection and Estate Planning for Washington Residents" at the link provided.
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