Descent

Key Takeaways

• Descent is the transfer of a deceased owner's real property to legal heirs when there is no valid will.
• Dying without a valid will is dying intestate. Dying with one is dying testate, and real property left by a will passes by devise.
• Under RCW 11.04.250 title vests in the heirs or devisees immediately at death, subject to the decedent's debts, family allowance, and expenses of administration, with no decree of distribution required.
• Descent runs to heirs. Property goes to the state by escheat only when an owner dies intestate and leaves no heirs at all.

What It Means

Descent is the rule that decides who takes a deceased owner's real estate when the owner left no valid will. That situation is called dying Intestate. The opposite is dying testate, with a will, and real property named in a will passes by devise to the people the will chooses. Descent is the legislature's backstop. Lawmakers write an order of takers, and the estate follows that order whether or not it matches what the owner would have wanted.

Two features of descent surprise students. The first is timing. Title does not sit in limbo waiting for a judge to hand it out. Under RCW 11.04.250 the decedent's title vests immediately in the heirs or devisees at death, subject to debts, family allowance, and the expenses of administration, and the statute says no decree of distribution or other order is necessary to put it there. The second is the limit on how far descent reaches. It runs to heirs and stops there. If an owner dies intestate and leaves no heirs at all, the land goes to the state by Escheat, which is a separate rule with a separate result.

How It Works in Washington

Washington's order of takers is RCW 11.04.015. A surviving spouse or state registered domestic partner takes all of the decedent's share of the net community estate. The separate estate is split by who else survived: the survivor takes one-half of the net separate estate if the intestate is survived by issue, three-quarters if there is no issue but a parent or a parent's descendant survives, and all of the net separate estate if none of those relatives are living. Whatever the survivor does not take passes down the statutory line, first to the decedent's issue, then to parents, then to brothers and sisters, then to grandparents and their descendants.

Because Washington is a Community Property state, the character of each asset drives the answer, and one estate can produce two different outcomes for the family home and for land the decedent owned before the marriage. RCW 11.04.250 supplies the timing on top of that: the heirs hold title from the date of death, but they hold it subject to the decedent's debts and the costs of administration, which is why the estate is normally settled on the record before a sale closes. Our guide to estates in land covers the ownership interests that move this way, and our piece on life estates covers an interest that ends at death instead of passing to heirs.

Example

Marta Ellis dies in Spokane County without a will, survived by her husband Ray and their two adult children. The couple's home is community property and appraises at $560,000. Marta also owned 20 acres near Cheney as separate property, inherited from her father before the marriage and worth $180,000. Under RCW 11.04.015 Ray takes all of Marta's share of the community estate, so the home is his. The separate acreage divides: Ray takes one-half, worth $90,000, and the two children split the other half, giving each of them a one-quarter interest worth $45,000. Title to every piece of it vested in them on the day Marta died under RCW 11.04.250. It vested subject to her debts and the expenses of administration, so the personal representative still has to clear those charges before the family can convey the acreage free of them.

Common Mistakes and Exam Traps

• Descent applies only when there is no valid will. Real property left by a will passes by devise instead.
• Escheat and descent are different endings. Escheat sends property to the state, and only when the owner dies intestate with no heirs at all.
• Title does not wait for probate. RCW 11.04.250 vests it in the heirs at the moment of death, subject to debts, family allowance, and administration expenses.
• A surviving Washington spouse does not automatically take everything. The community share passes to the survivor, but the separate estate is divided with the decedent's issue when there are children.