Do I need a will?
Depending on your circumstances, you may not need a Will to ensure that your estate is distributed according to your wishes. For instance, married couples can execute a Community Property Agreement that will automatically vest all property they own in the surviving spouse (although if either was married previously, children from the previous marriage may have a statutory claim on part of the estate).
If you die without a Will and have no surviving spouse, Washington state's “descent and distribution” statute will divide your estate between your legal heirs – first your children, then your grandchildren (if one or more of your children fail to survive you). If you aren't survived by any lineal descendants, the list of successors expands to parents, grandparents, aunts and uncles, cousins – and ultimately, the State of Washington.
Even if your plan of distribution parallels the State's distribution formula, however, preparing a will can save your heirs a lot of headaches and stress in closing your estate.
If your estate has to be probated without a will, your personal representative may have to post a surety bond to protect the interests of heirs and creditors. In addition, whoever steps up to administer your estate will not automatically qualify for “nonintervention powers”– the authority to transact business on behalf of the estate and settle it without having to get court approval
What other estate planning documents are important?
A General Durable Power of Attorney authorizes someone to conduct your business affairs if you aren't able to. A Health Care Power of Attorney names someone to make health care decisions on your behalf. An Advanced Care Directive sets out your instructions regarding life support and tube feeding. Not having these documents could create more problems for your family than not having a Will.
Do I need to have a living trust?
Revocable Living Trusts have become popular estate planning instruments, particularly in states such as New York and California where the probate process is more complicated and more costly than it is here.
Washington's probate process – the official, court-administered closing of an estate – is fairly uncomplicated if the Will is uncontested. Avoiding probate alone probably isn't a sufficient reason to consider a Trust. On the other hand, if you fall into one or more of the categories below, a Living Trust might be of particular value:
You have an estate subject to state or federal estate taxes (currently a net worth for an individual of more than $2.19 million for state taxes; the federal threshold is $11.7 million);
You own real property in another state; or
You are concerned about your health and want to ensure your assets are managed according to your wishes if you become incapacitated.
Can I used ‘off-the-shelf’’ or ‘canned’ documents?
If you use a “canned” or form estate planning document, whether you buy it at an office supply store or over the Internet, you run a very real risk of creating unintended problems for your heirs. “One-size-fits-all” documents may not address specific provisions of state law (even though such documents are often advertised as “valid in all 50 states”).
The Washington State Bar Association cautions, “Although ‘do-it-yourself' forms and kits are available, they may not consider individual circumstances and relationships, and could cause litigation, Will contests and other problems in transferring property to heirs.” One-size-fits-all” documents may not address specific provisions of state law (even though such documents are often advertised as “valid in all 50 states”).