When someone dies without a Will, that person is said to have died “intestate”. Washington State Law has specific rules in place to determine who gets the net estate of someone who dies intestate. Those rules are found under the intestate succession rules of RCW 11.04.015.
In my experience, a good number of clients generally believe that if a spouse dies without a Will, the surviving spouse automatically gets the net estate of the decedent. It isn’t quite that simple. In an intestate probate, a decedent’s assets are categorized as either community property or separate property. Community property and separate property are defined below. Community property does in fact go to the surviving spouse. Separate property, however, is distributed 50% to the surviving spouse and 50% to the surviving children of the decedent. If the decedent has no surviving children, then the decedent’s separate property is distributed 75% to the surviving spouse and 25% to the decedents surviving parents, or if no surviving parents, then to decedent’s surviving brothers and sisters. The separate property would only be distributed 100% to the surviving spouse if the decedent has no surviving children, parents or siblings.
Community property is defined as property that is not separate property and is acquired after marriage or after registration of a state registered domestic partnership by either domestic partner or either husband or wife or both. Separate property is defined as property and pecuniary rights owned by a spouse before marriage or acquired by him or her after marriage by gift, bequest, devise, descent, or inheritance.
You may be asking, what happens if there is no surviving spouse? RCW 11.04.015 has the answer to that question too. If there is no surviving spouse, the net estate shall be left to the issue of the intestate, in other words, the decedent’s children equally. If the decedent does not have children, then to parents of the decedent. If parents or a parent does not survive the decedent, then to siblings of the decedent. The descent and distribution chart goes to grandparents and so on should the decedent not have surviving children, parents, or siblings.
An additional step in an intestate probate occurs when transferring title to real estate. Often times clients are under the belief that title to real estate automatically transfers to the rightful heir. Fact is, in most cases, title must be transferred by a Personal Representatives Deed. Furthermore, assets with beneficiary designations generally fall outside an intestate probate.
The intestate succession rules may or may not be consistent with the manner in which you wish your net estate to be distributed upon your death. In almost all cases I would advise individuals who do not have a Will to sit down with an experienced estate planning attorney and discuss a formal estate plan which includes a Will. A Will is a legal document that states how you want your net estate to be distributed after your death
Note, descent and distribution applicable to surviving spouse also applies to state registered domestic partnerships.