Will

Key Takeaways

• A will directs how a person's property is distributed after death and names the person who is to carry out those instructions.
• In Washington a will must be in writing, signed by the testator or by another person at the testator's direction, and attested by two or more competent witnesses (RCW 11.12.020).
• A Washington will reaches the decedent's separate property and one half of the community property. The other half is confirmed to the surviving spouse or domestic partner (RCW 11.02.070).
• Whoever holds the will must deliver it to the court or to the named executor within 30 days of learning of the death, and a named executor has 40 days to file it with the court (RCW 11.20.010).

What It Means

A will is a written, witnessed set of instructions that takes effect only when the person who signed it dies. The person who makes it is the Testator. Until death the document controls nothing. The testator can sell the property named in it, spend the money, tear the will up, or sign a new one, and the people named in it hold no interest in anything yet.

Real estate students meet the will because it is one of the ways title moves. A gift of real property in a will is a devise and the person who receives it is a devisee, while a gift of personal property is a bequest. Once the will is offered and admitted, the court supervises the transfer, the debts get paid, and ownership is confirmed on the record. Dying without a valid will means dying Intestate, and then statutes rather than the decedent decide who inherits.

A will is not a substitute for a deed. It conveys nothing during life, and it is filed with the court after death rather than recorded in the property records the way a deed is. It reaches the land only through the probate that follows.

How It Works in Washington

In Washington, chapter 11.12 RCW sets the form. RCW 11.12.020 requires that "every will shall be in writing signed by the testator or by some other person under the testator's direction in the testator's presence or electronic presence," and that it be "attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit" that complies with RCW 11.20.020(2). The same section also recognizes a will executed "in the mode prescribed by the law of the place where executed or of the testator's domicile," so a document that was valid where it was signed can still work here.

Community Property changes the arithmetic. RCW 11.02.070 provides that on death "a one-half share of the community property shall be confirmed to the surviving spouse or surviving domestic partner, and the other one-half share shall be subject to testamentary disposition by the decedent, or shall descend as provided in chapter 11.04 RCW." A Washington will therefore controls the decedent's separate property plus half of the community property, and no more. Oral wills are narrower still: RCW 11.12.025 permits a nuncupative will only in limited circumstances, only for personal property, and it cannot be used to devise real estate.

Timing is statutory too. Under RCW 11.20.010 anyone holding the will must deliver it to the court with jurisdiction or to the person named as executor within 30 days of learning of the death, and a named executor has 40 days to deliver it to the court. RCW 11.04.250 then vests title in the heirs or devisees immediately at death, subject to the decedent's debts, though a will has to be probated before anyone is a devisee. That is why a title company looking at an inherited property asks for the Probate file and not just the will.

Example

Ray and Ellen married in Spokane and bought their house during the marriage, so it is community property. When Ray dies the house is worth $540,000 with $180,000 left on the mortgage, which leaves $360,000 of equity. Ray's will leaves all of his interest in the home to Nadia, his daughter from an earlier marriage.

Ellen's half is confirmed to her under RCW 11.02.070, so Ray's will can only reach his own one-half share. Nadia takes an interest worth $180,000 of the equity and Ellen keeps the other $180,000 along with her own half of the house. Nadia does not get the house. The friend who kept Ray's will in a desk drawer delivers it to the Spokane County court within 30 days, as RCW 11.20.010 requires, and any broker who later takes the listing needs the signatures of everyone who now holds title, not Nadia's alone.

Common Mistakes and Exam Traps

• A will takes effect at death while a deed takes effect on delivery during life, so a question about when the interest transfers is testing that difference.
• Washington requires two competent witnesses to attest a will under RCW 11.12.020. A handwritten will signed alone in Washington fails that test, although the same section can still recognize a will valid where it was executed or where the testator was domiciled.
• An oral will cannot pass real estate in Washington. RCW 11.12.025 limits a nuncupative will to personal property in narrow circumstances.
• A will does not override community property. RCW 11.02.070 confirms one half of the community property to the surviving spouse or domestic partner no matter what the will says.