Wills: Frequently Asked Questions & Terms
Who can make a will?
Anyone who is of sound mind and at least eighteen (18) years of age can make a will. Under Washington law, the will should be acknowledged before two witnesses and signed by the maker and the witnesses in the presence of a notary public. Persons named in the will cannot be witnesses and it is advisable to have the witnesses be persons who are not related to the maker and have no interest in the estate of the maker.
What does the will do?
A will directs how and to whom your property shall be distributed after your death. A valid and effective will distributes what you own as you see fit through a person you choose, who is named as your personal representative. Some property, however, is not controlled by a will. For example, life insurance proceeds payable to named beneficiaries are not included in the probate of a will. Trust you may have created with a future interest in others will not pass by your Will. If you have questions about property that may not be governed by your will, you should consult with your attorney.
What are the advantages of making a will?
A will allows you to distribute your property to those you want to have it. It allows you to appoint a person you trust to see that your wishes are carried out, appoint a guardian for your minor children, if necessary, and provide cash to your family for expenses of your last illness. In Washington, you may attach a list to your will, which gives certain items of your personal property to your name beneficiaries. This list must be signed by you, but can be changed and updated periodically, without the necessity of revising your will.
Do I need a lawyer to prepare my will?
Many people do not. Of course, if you have an extensive estate, with many real properties and large numbers of valuables, you may have complicated problems which a lawyer would guide you through. There may be complications such as an impending divorce, the existence of a pre nuptial agreement (a contract between persons before they marry), prospects of a large inheritance, or property you may want to dispose of during your lifetime. In any of these circumstances, you should consult an attorney for guidance in preparing your will.
Can I create a trust in my will?
Trusts for a spouse, children or others, can be created in a will. There are many different kinds of trusts, however, with various legal, tax and cost considerations. For that reason, you should consult an attorney if you want to provide for a trust in your will. A trust can be created in your will to provide for any of your children or grandchildren who are minors at the time of your death.
What happens after I make my will?
You must take steps to insure that your original will is available to your heirs upon your death. Keep it in a safe place but not in your safety deposit box. You should provide at least one copy to your designated personal representative and/or at least one of your heirs. It is a good idea to review your will once a year in the event of changed circumstances. Sometimes a simple document called a “codicil” can be prepared to attach to your will, in the event of a simple change in circumstance, without having to execute an entire new will.
Some type of legal proceeding may be necessary upon your death to process your wishes if some of your properties were in your name only. “Probate” is a word that technically refers to the processing of your will according to your wishes, in the county court in which you died. “Administration” of your estate is the process by which your designated personal representative is appointed by the court to collect all the property subject to your will, pay your debts and your family’s immediate expenses, and distribute the remaining assets in the manner described in your will.
How can I change my will?
There is a method by which only certain provisions of an existing will can be changed, without changing the other provisions. A “codicil” is used to do this. However, it is more difficult (and sometimes risky) to attempt this than to simply execute a new will. If you want to make changes to your will after it is executed, consult with your attorney to decide if a codicil is appropriate.
How can I revoke my will?
Generally, when someone wants to revoke a will, he or she executes a new will immediately. The execution of a new will revokes all previous wills and codicils you have made. However, it is always best to destroy the old will. Destruction of the original will revokes it.
Can I disinherit my spouse or one or more of my children?
Washington law gives some protection to a surviving spouse and minor children against disinheritance. It is not possible to entirely disinherit these people. If, however, you make a will and leave all of your estate to other people or organizations, your spouse and minor children may receive only the minimum amounts guaranteed by law. NOTE: One-half (1/2) of your community property (which is not subject to right of survivorship) belongs to your spouse and you cannot dispose of that portion by your will. Similarly, joint tenancy property automatically belongs to the surviving joint tenant or tenants upon the death of the first joint tenant. These matters are rather complicated and if you have questions, please consult with an attorney.
It is possible to completely disinherit an adult child who is eighteen or older.
Terms used in wills:
“Personal Representative” is the title given to the person whom you designate to see that your wishes expressed in your will, are carried out after your death. The previous term used was “executor”. Many people choose to have their spouse be their personal representative. You might also designate your bank or a trust company to serve in this capacity, but unless the estate is quite large, that probably would not be advantageous to either of you.
A “beneficiary” is one who is designated by you in your will to receive some or all of your assets after your death.
Guardian for a child:
A “guardian” is the person nominated by you in your will to assume the custody and care of your minor children in the event of your death. Generally, this is a member of your family or a close personal friend. If a natural or adoptive parent survives, it is not necessary to nominate him or her as guardian. If he or she is not unfit to assume custody, this appointment will happen automatically. A guardian must be eighteen years or older.
Conservator for a child:
A “conservator” is one who manages the estate (monies and property) of a minor child. He or she acts as a trustee with regard to any property or funds you may leave the minor children. As with a guardian, conservators are often family members or close personal friends. Frequently, married couples will want to designate each other as the first choice for conservator. Your conservator can be the same person who is nominated as guardian, or you can separate the roles if you wish. A conservator must be at least eighteen years or older.