What happens if I don’t have a Will or Trust

By AnnMichelle Hart, Esq.

July 20, 2020

If you have no will at the time of your death, then you are described as dying “intestate,” which simply means you have died without any document legally outlining the distribution of your assets – also known as your “estate.”
Wills and/or Trusts are the most common documents to authorize distribution of your estate.
If you have a will and/or a trust at the time of your death, then the distribution of your estate is governed by your will and/or trust.
If there is no will and/or trust, those assets that do not already have a designated beneficiary (such as life insurance policy or a retirement account which typically do have named beneficiaries) will pass to your heirs under the intestacy laws. (We will assume you have died in Washington.)

What happens if I’m married at the time of my death?

Generally, with regard to your estate, if married, you will have community property and separate property in Washington.  

Washington is a community property state. In a community property state, all property and all debt accumulated during the course of a marriage including income of both spouses is presumed “community property” belonging to both spouses.
According to the Washington State Legislature, property acquired after the marriage ceremony is considered community property. … Separate property is defined as property that has been brought into the marriage or given to one spouse as a gift, inheritance, devise, bequest or descent.
If you die intestate in Washington leaving a spouse but no children, parents or siblings, your spouse will inherit everything. However, if you die leaving a spouse and children, the spouse will inherit all your community property and one-half of your separate property, and your children will divide the other half of your separate property.

What happens if I’m not married at the time of my death?

If you are not married at the time of your death, then your entire estate would pass to your heirs. If you have children, they would divide your estate equally. 
If one of your children pre-deceased you but is survived by children of his/her own, then those children of the deceased child share their deceased parent’s share of your estate.

What happens to the estate if there is a will or trust?

If you have a will or trust, normally your estate will be distributed according to the terms of your will.
If you leave out a child (they are not included in the will or trust), then they will likely have no claim on your estate if your will and/or trust is/are valid.
Washington law provides that if a child is not specifically disinherited in the will, then that child could claim a share of the estate as a “pretermitted heir,” which is a term which assumes that if a child is not named, then that child was inadvertently left out, and so will receive a child’s share.

Heirs need to obtain a copy of your Will

If you have children, they have a right to obtain a copy of your will which is to be admitted to probate your estate. Probate is a public matter, so your Will is open to the public. The will is available through the probate court.
Upon receiving a copy of the will, your children will need to determine what rights, if any, that they may have in the estate, and the executor of the will is legally obligated to honor those rights.
The probate judge and the attorney for the executor are there to ensure that your wishes concerning distribution of your estate, as set forth in the will, are carried out.
Your heirs, it if it worth it, may wish ti hire their own probate attorney to oversee the estate administration process to make sure they are being treated according ti the terms of the trust or will. 

Heirs need to obtain a copy of your Trust

A trust is not a matter of public record so your heirs may need to dig a little deeper to obtain a copy of your trust.
If your children (or other heirs) are named in the trust as a beneficiary, the Trustee must inform your children (or other heirs) of this fact and they will be entitled to receive a copy of your trust with respect to those provisions of the trust which describe what they will be inheriting from the estate.
Because the administration of a trust is a private matter, often not coming before the court system, it may be difficult for them to find out who is overseeing the process of administering your trust, but a little effort will usually result in finding out who is in charge, following which, their attorney can then obtain a copy of those portions of the trust document which deal with their share of the estate.

Request a consultation with an Estate Attorney

Request a consultation with me if you have any questions or need estate planning help to create your will and/or trust documents.