Applies when no will, or will doesnt cover all assets, or will denied probate
If surviving spouse, takes 100 percent of CP. Takes 50% of SP if survied by kids. If no kids, but parents/siblings of dead hubby still alive, spouse takes 75%. If none, spouse gets 100% of sep property
If no spouse, kids get 100%. If no kids, parents get 100%. If no kids or parents, siblings take 100%. If no kids, siblings, or parents, 100% goes to issue of grandparents (aunts, uncles, cousins). Split between grandmothers/grandfathers family 50%. So if one aunt on mothers side, and 14 on fathers, each side gets half then split between them. If none of these, escheats to the state.
Modern Per Stirpes
Don't divide teh estate until you find a living member in a generation, then divide into shares horizontally, then vertically. So, if two siblings and dad dies, each get 50%. If one sibling dead, with two kids, two kids will split 50% share of parents share, and living sibling gets 50%.
BUT if dad dies and both siblings are dead, then it is split between the three cousins equally.
Half Blood Relatives
treated as whole blood.
Genearlly don't inherent except if step parent and parent, parent dies leaving all to step parent, then step parent dies. Step kid will get from step parent then.
Non marital kids
Can take from father if proved to be father by c and c. If conceived before birth but born after death, still kid If parental rights terminated, then kid dies later without new adoptive parents, terminated family doesnt take from dead kid.
If cause death of another and killing was willful/unlawful. So neg homicide and self defense don't count. Even if insanity defense, don't inheret. If beneficiary abused dead person while vulnerable adult..
Uniform Simultaneous Death Act
if two people die at same time, and when title to property depends on order of death and within 5 days of eachother (will can change time), property passes as iff they survived.
unwitnessed will that will be valid but all of will has to be in testators handwriing. WA doesn't recognize, only allowed here if applicabile law was of other state that allows them.
When WA will recognize wills from another state
where executed, or state where living when died.
1. capacity (over 18 and mental capacity).
mental = know nature of property, recognize objects of bounty, and understand significance of will.
2. must have current testamentory intent: problems of conditional intent (if I die on this trip...)
3. Must be in writing - handwriting ok. No videos. No need for date.
4. Signature of testator.
5. Witnesses: need 2. If interested/recieving under will, won't invalidate but creates a presumption that will procured by fraud and amy lose portion of inheretence.
6. Sign will in presence of witnesses (witnesses don't need to be in presence of each other).
7. Witnesses have to sign will or self proving affidavit.
1. failure to comply with formalities
2. lack of capacity
3. insane delusion: beliefe that is contrary to all available evidence and effected terms of will (but for test).
4. undue influence - burden on contestants. But for test. Look for confidential relationship that creates presumption that shifts burden to influencer.
5. fraud: in execution and in inducement (lie about sister, mom signs will based on that)
6. Mistake: generally won't work
Revoking your will by destruction
act of destruction: intent to revoke. Partial revocation by crossing out ok but only if change is not substantial.
If will in possession of testator and can't find, presumed destroyed and revoked. But can prove will by c and c evidence and must include testimony of the witnesses.
Revoking will by subsequent will instrument
later document, but must be executed with same will formalities. Condicil changes date of will to when signed codicil.
Effect of revoking will
revocation of will revokes all later codicils unless can show contrary intent. So sign will on M, On T sign codicil to change, then W tear up monday will. codicil revoked too
If revoke new will, prior wills not revived is the rebuttable presumption. If codcil revoked, revival of original provisions of underlying will
Dependent relative revocation
will 1 revoked under mistake that will 2 will be effective will, and will 2 ineffective and will 1 close to testators intent moreso than intestacy, ct will enforce will 1. Must be nexus between will 1 and 2.
Advancements/life time gifts
transfer during lfie presumed to be gift unless proof it was an advancement of inheritence.
Amendment/revocation as matter of law
marriage after date of will. New spouse entitled to intestate share with numerous exceptions. Gifts to others revoked as needed to accomodate new spouses inheritence rights. Birth/adoption of kid after will. Entitled to intestate share. If divorce after will, automatically removes previous spouse. But not for legal seperation. Applies to most employment assests but preempted by ERISA (doesn't remove)
Protection of Family: claims that override what will says
1. Spouse - if omitted, awards up to amount of intestate share, but ct can cut that back. Doesn't apply to non probate.
2. Kid: doesn't apply to kids not named in will, only if born after will made.
3. homestead: surviving spouse can calim this interest in family home. Amount of homestead exempt from creditors, so useful if estate insolvenet. Amount up to 125K.
4. If no equity in house, family support award. combination of equity in house and money for family support up to 125 k.
K's relating to will
1. T agrees to make will leaving to B in exchange for B caring for T when old. OR
2. two people agree to leave estate to each other with mutual promise that whoever survives will leave left overs to decided third parties.
Will Ks allowed in WA. ORAL ONES ARE OK. High burden of proof. If competing claims of omitted spouse.kids. cts have held that omitted family provisions override K claims.
non probate assets are interests in prop that pass outside of probate. Joint bank accounts, life insurance, employee retirmeent, community prop K, property in trust.
can change where non probate assets go with a will, but hard. Only with revocable living trusts and joint bank accounts really.
Will Interpretation - Integration
Integration: defintes what is the whole will
Will Interpretation - Incorp by reference
Extrinsic doc, not present at will, can be incorporated by reference if written, in existence with will made, and referred to in will, and intended to be part. EXCEPT if trust -- you can create/change after
Will Interpretation - disposing of personal prop
doesn't need to be in existence when will made, but must be signed, can't be regarding cash only tangible personal property.
Will Interpretation - acts of independence significance
exception to req that all dispositive terms in writing, witnessed, etc. Gift can be changed by actions outside will if actions have independent significance EX. Give house to A. Then sell house, buy new, new house still goes to A.
First, plain meaning and won't admit EE except for personal usage. Second, EE only admitted to resolve ambiguities, not contradict plain meaning.
Then, deadman statutes -- can't have someone testify regarding what dead person wanted if they have an interest in the outcome
Distribution of Estate
1. Specific - entitled to specific prop
2. demonstrative - 25 k from proceed of stock sale
3. general - dollar amount with no asset where it comes from
4. residuary - leaves rest of estate to someone/trust
5. intestacy - prop not disposed of in valid will.
assets insufficnet for all distributions, so hand out in following order. IF abasement provision in will, follow that, or debts paid first from intestate property. Abate the assets proportionally within the category that it is eg specific, demonstartive, etc.
will make specific gift of property but property not owned by testator anymore. No substituted property or value allowed. Once adeemed, get nothing.
beneficiary dies first, gift lapses. Must survive to take. Lapsed gifts go to residue
if beneficiary dies first, they were descendant of grandparent of dead persoon, then gift will go to the kids instead. Soo if related to testors child, brotehr, etc. Includes everyone related to grandparents, adn then they have kids. APPLIES to revocable living trusts as well
Can disclaim interest in whole or part. Distributed as if disclaimer died first.
Appoint personal rep. For CP, spouse has right to be personal rep over it. Creditors must get notice and file claim within four months or 30 days after actual notice. Don't have to give them notice, but then they have 2 years to come after it.
must file within four months after admission to probate. No contest clause enforceable unless claim was brought in good faith. Remedy is will invalid.
To be valid: must deliver prop to trusttee for benefit of beneficiaries with intent to create a trust, must be for lawful purpose, but no consideration is required. Beneficiaries must be ascertainable (to friends not ok, to cousins is). OR have charitable purpose OR pet trust (pets not ascertainable normally but in WA ok if no vertabrea).
Trust can be oral.
cant be reached by creditors of beneficiaries to force payment. Except for credit claims re child support and if for necessities. once money out to beneficiary, creditors can take.
Modification and termination of trusts
if settlor alive, adn all agrree. If dead, need to distinguish between modification and termination. If modification, then administrative OR distribution deviation. Admin ok if beneficial to trust. Distribution change, only for unforeseen things and trust purpose frusterated without change
WA law allows non judicial settlement agreements when all parties agree, you cacn modify or terminate the trust. Will take force of court order. Can get agreement of minor or unborn beneficiaries thorugh virtual rep or GAL.
Removal of trustee
generally only for cause.
must have charitable purpose. Confer social benefit, but benevolent purpose not enough> can last forever , void from RAP. Tax benefits.
CY PRES: can modify trust if grantor had general intent, as opposed to intend specific charity, and as written can't implement or impracticable to implement.
State attorney has standing to enforce.
Duties of Trustee
Duty of loyaly: act in best interst of beneficiaries. Self dealing not allowed unless consent, allowed in trust K, ct gives approval, exception for corporate trustees.
Duty of care: duty to invest prudently. take into account economy, etc.
Duty to diversify: dont put all eggs in one basket
Duty to treat beneficiaries impartially: trustee gets discretion in allocating between principal and income, unless trustee is also beneficiary.
Duty to segregate trust prop from own
Duty to delegate responsibly: don't hire idiots to invest and use due care in selecting them
Duty to preserve property through insurance adn other protections
Duty to account/keep informed. At least once a year. For non routine transactions, must give advanced writtin notice.
non routine = thigns affecting prop that is at least 25% of total trust assets, transactions affected person prop whose value is at least 25% of total turst, sale of closely held stock when it has 25% or more in entire corp, or sale of stock causing trust to lose controlling position.
Rule against Perp and Trusts
Trusts may last for 150 yrs. At end, trust terminated and distributed
Power of Appointment
power to decide who will get prop at certain time. Can make trust to X for life, then remainder to Y.
non probate and not subject to probate administration, just pass to beneficiary designated
Children after execution of will and who survives. Receives share entitled to under intestate. to create this share, the other heirs will refuld a proprotional part.
Specific Bequest -- property no longer owned by testator
when specific bequest and item no longer around at death, bequest is adeemed in that it fails completely. Name devisee does not take proceeds if item sold before death.
Personal Rep Duties
fiduciary. Owes honesty, loyalty, and due care to heirs and creditors. PR must not commingle funds. Must settle estate as soon as possible without loss to the estate, and must not self deal. Notice is not necessary, except that if PR not spouse, spouse entitled to be nomiated as PR over community property when petition filed within 40 days of death.
CP or SP
If acquired during marriage, assumed to be community can be ovecome by c and c evidence that acquisition falls into SP statutory given (gift, inheretence, devise). or the acquisition can be traced to seperate property sources, or parties agreed to some form of ownership other than CP. SP is fully disposable at death, while each spouse can dispose of half of the CP.
PR needs approval from court? non intervention
non intervention allows PR to settle estate without ct intervention.
non claim procedures strictly applied to so that creditors non compliance will bar their claim. Every claim served and filed must be supported by affidavit of claimant that amount justly due, that no payments have been made, and there are no set offs. Creditor must serve claime on PR, and file copy with ct within 4 months of receiving notice (or 2 years if no notice given)
Venue in Probate Proceedings
Venue proper in county were dead person lived, where they died, or where the property of non resident dead person is located.
conditions in will
courts are more likely to consider and interpret conditions as statements of inducement rather than true conditions
Charitable Gifts in Will
Can be conditioned on purpose. Cy pres will allow substitute for next bst thing. Testator intent governs and duty of PR to remain loyal to intent. If not for express purpose, gift can deem to lapse and pass intestate.
To create, need trustee, beneficiary, trust property, intention to create trust, and valid/lawful purpose.
Effect of seperate writing after will execution
without will formalities it can only be used to dispose of personal property if it references a will provision authorizing such a writing. Otherwise, have to meet formal requirements for condicil which are same as will.
What effect of crossing out portion of will?
with intent to revoke that portion, but cant be substantial change. Attempted revocation of thing just to give it to another and change beneficiary by altering document not ok, need proper codicil
revoking trust orally
Not allowed, needs to be in writing. But can be orally created.