What Happens if I Die Without a Will?
By Kendel Froese | August 30, 2022
Most people know that having a Last Will & Testament is a good idea. And yet, 67% of Americans do not have an estate plan. So, what happens when those 2 out of every 3 Americans pass away without having executed a Last Will & Testament?
If you die without a Last Will & Testament…
Assets: If you live in Washington state and die without a Will, the distribution of your assets is governed by the Revised Code of Washington, AKA Washington state law. This state law directs that if you die with:
Children but no spouse >>> your children inherit everything;
A spouse but no children, parents, or siblings >>> your spouse inherits everything;
Parents but no children or spouse >>> your parents inherit everything;
Siblings but no children, spouse, or parents >>> your siblings inherit everything;
A spouse and children >>> your spouse inherits all of your community property and half of your separate property, and your children inherit the other half of your separate property (note that if the children are the biological children of both the surviving spouse and the deceased spouse, the entire estate - community and separate -of the deceased spouse will go to the surviving spouse);
A spouse and parents >>> your spouse inherits all of your community property and 3/4 of your separate property, and your parents inherit the other 1/4 of your separate property;
A spouse and siblings, but no parents >>> your spouse inherits all of your community property and 3/4 of your separate property, and your siblings inherit the other 1/4 of your separate property.
Note: It’s a relatively common misconception that if you die without a Will, your assets go to the State. While this is possible, it’s relatively infrequent because if you have any of the above family members, or grandchildren, grandparents, nieces, nephews, aunts, uncles, or cousins, your property will generally not go to the State, but will be distributed to your relatives as directed by RCW 11.04.015.
Minor children: Another vital part of a Last Will & Testament for many people is designating a guardian for their children. Where will your kids go if you haven’t spoken up to say who you want to serve as their guardian? The court will step in to consider what is in the best interests of the child(ren). It’s entirely possible that multiple people might petition to serve as guardian, which can result in a court hearing to determine where the kids will go. If the kids are older, they can have some say with the court regarding where they end up. In some cases, there might be a family member or close friend who is a clear choice for guardian, and who the children want to be with. But, in many other cases, it’s not so clear. There might be a potential guardian who looks great on paper, but when it comes down to it isn’t a good choice - but the court can only use the information it has at its disposal, and if you haven’t designated a guardian, your input isn’t considered and you’ve given up control of what happens to your children after you die.
Bonus: What happens if I become incapacitated without a Durable Power of Attorney for Finances and/or Durable Power of Attorney for Health Care?
When you execute Durable Power of Attorney documents, you are designating someone to act in your place if you should become incapacitated. The two Durable Power of Attorney documents most estate planning attorneys (including me) recommend are (1) a Durable Power of Attorney for Financial Management and (2) a Durable Power of Attorney for Health Care. If you don’t have these documents in place and you become incapacitated, your loved one (spouse, best friend, child, et cetera) will have to petition the court to be appointed as your guardian and/or conservator. A guardian is a court-appointed person who makes decisions about your health, safety, and self-care (generally, the same role you would designate to someone in a Durable Power of Attorney for Health Care). A conservator is a court-appointed person who makes decisions related to your money, property, and overall finances (generally, the same role you would designate to someone in a Durable Power of Attorney for Financial Management). Keep in mind, if you have not executed Durable Power of Attorney documents, it is possible that more than one person could petition the court to be your guardian and/or conservator and the court then decides who of the petitioners will act in your best interest. In addition, essentially any process that requires a court hearing is going to take some time, while the court reviews the petitions and schedules a hearing to determine whether a guardianship and/or conservator should be granted, and if so, who should serve in those roles. If you plan ahead, not only do Durable Power of Attorney documents give you the power to designate who you want to make decisions for you, but you also have the option of making the document effective immediately. A benefit to making a Durable Power of Attorney effective immediately is that your designated agent can step in right away and start making necessary decisions for you, rather than having to wait until a medical provider has documented in writing that you are incapacitated. Keep in mind that any Durable Power of Attorney document, or court-appointed guardianship or conservator, generally terminates when you die, at which point your Last Will & Testament kicks in for designations of personal representative, beneficiaries, et cetera. For more information about guardianships and conservatorships, visit Washington Law Help. For more information about a Durable Power of Attorney for Health Care, check out this blog post on Health Care Directives, and for Durable Power of Attorneys in general, visit Washington Law Help.
If you are one of the 67% of Americans who don’t have an estate plan, Thrive Law would be honored to do this work with you. Call/text Kendel at 509-514-5317, instantly schedule a meeting, or contact us.