Intestate

Key Takeaways

• Intestate describes a person who dies without a valid will, so a statute rather than the deceased's own instructions decides who inherits.
• In Washington, the surviving spouse or state registered domestic partner receives all of the decedent's share of the net community estate, plus one-half of the net separate estate when the decedent left issue (RCW 11.04.015).
• If no issue survive but a parent or the issue of a parent does, the surviving spouse takes three-quarters of the net separate estate, and if none of those survive the spouse takes all of it (RCW 11.04.015).
• Dying intestate does not hand the property to the state; that happens only when nobody is entitled to inherit under state law (RCW 11.08.140).

What It Means

A person who dies intestate left no valid Will, so the law supplies one. Instead of following written instructions, the court distributes the estate using a statutory table that ranks surviving relatives by closeness. People who take under that table are heirs. Someone who takes under a will is a devisee, which is why the two words are not interchangeable on a licensing exam.

Intestacy is not always an all or nothing condition. An estate can be partly intestate, for example when a will disposes of the bank accounts but says nothing about a rental house, or when a named beneficiary dies first and the will names no substitute. The portion the will misses passes by the intestate rules while the rest still follows the document.

Dying intestate does not skip Probate. A court still opens an estate, appoints a personal representative, allows claims and expenses, and enters a decree of distribution. What changes is who chose the recipients. In a testate estate the deceased chose them; in an intestate estate the legislature already did, and no amount of family agreement about what the deceased would have wanted rewrites the statutory shares.

How It Works in Washington

In Washington, the intestate table is RCW 11.04.015, and it is built around this state's Community Property system. The surviving spouse or state registered domestic partner receives all of the decedent's share of the net community estate. On top of that comes a share of the net separate estate, and the size of that share depends on who else survived: one-half if the intestate is survived by issue, three-quarters if there is no surviving issue but the intestate is survived by a parent or by the issue of a parent, and all of the net separate estate if there is no surviving issue, parent, or issue of a parent.

Whatever the surviving spouse does not take passes under the second half of RCW 11.04.015, in this order: to the decedent's issue, then to the parents, then to the issue of the parents, then to the grandparents, then to the issue of the grandparents. Only when that entire list is exhausted does RCW 11.08.140 apply, designating the property escheat property so it passes to the state by Escheat. Because the community half consolidates in the surviving spouse, a Washington couple's family home very often ends up wholly owned by the survivor even with no will in the file.

Example

Marcus dies in Tacoma without a will. He and his spouse Dana own a community property home worth $600,000, and Marcus separately owns a rental he inherited from his father worth $300,000. Two adult children survive him.

Dana already owns her own one-half of the community home, which is $300,000. Under RCW 11.04.015 she also receives all of Marcus's community share, the other $300,000, so the entire $600,000 house is hers. Because Marcus left issue, Dana takes one-half of the net separate estate, $150,000 of the rental's value, and the two children divide the remaining $150,000, which is $75,000 each. Had Marcus left no issue and no surviving parent, Dana would have taken three-quarters of the rental, $225,000, and the remaining $75,000 would have gone to his parents' issue.

Common Mistakes and Exam Traps

• Intestate describes the person or the estate, never the land itself. There is no such thing as intestate property.
• Dying intestate does not avoid probate. It replaces the deceased's instructions with the statutory shares, and the court process still runs.
• Heirs take by intestate succession and devisees take under a will, so an answer calling an intestate taker a devisee is wrong.
• In Washington the surviving spouse does not always take everything. All of the community share, yes, but only part of the separate estate when issue or parents survive (RCW 11.04.015).