Estate planning may involve many different types of legal documents, though two of the most important documents may be a last will and testament and a power of attorney.

At the Dickson Frohlich Phillips Burgess, we ensure that every estate plan includes these documents if necessary, and we know how to skillfully execute them.

Drafting effective wills

Almost everyone is familiar with the idea of a last will and testament, though many people may not realize how imperative having a will may be. A will may cover numerous important issues after your death, such as:

• Distribution of assets and property to intended beneficiaries.
• Naming a guardian to take care of your minor children.
• Naming a person to manage any assets or property left to minor children until they reach a certain age.
• Naming a person to serve as executor of the will, who you can trust to carry out your wishes as outlined in the will.

Because a will addresses many important matters, you want to make sure that yours is legally valid and thus the document must meet certain requirements. First, the will must be executed, signed, and witnessed in accordance with Washington state law¹. Your will must also be properly amended if you decide to change any of the terms at a later date. Furthermore, it should be clear that you made all of the decisions in your will with a sound mind and that you were not the victim of undue influence or other coercion.

A probate court will examine your will closely, especially if any objections are made, and you want to be sure your will is drafted in a manner that will stand up in court.

Understanding the importance of wills and estate planning

The property amassed in life will be distributed to other individuals after a person’s death. How and to whom it is given depends on whether that individual has created a Last Will and Testament. If one has not been created, then the state controls the distribution of one’s property according to the directives found in the Revised Code of Washington (RCW). Clearly, it is better to be proactive regarding one’s property so as to assure that the preferred individuals or entities receive an individual’s property after he or she have passed away.

Why preparing a will is challenging

People often avoid preparing wills because it touches upon the subject of death, which is commonly an uncomfortable subject to most. While thinking of death may be off-putting, doing nothing to prepare for its inevitability may—more likely “will”—cause enduring emotional strains upon one’s surviving friends and family. While it may not be required, it is certainly wise to engage an attorney to help guide you through the preparing of a will. This is true, if for no other reason than it shift the focus to a third-party, who does not have the same personal connection to the sensitive subject of death (well, at least not to a particular person’s).

How wills are constructed

To understand what a will is, one should know how it is created. In short, a will in Washington State is essentially a written document which contains the wishes of how the testator (person making the will) wants his or her personal and real property to be distributed. There are almost no limits on how, and to whom, the property may be distributed. A testator is under no obligation to gift property to any specific individual. (If he or she was married in life, there may be some community property considerations that impact the extent to which property is transferred according to the will.)

RCW 11.12.010 describes who is allowed to create a will: “Any person of sound mind who has attained the age of eighteen years may, by last will, devise all his or her estate, both real and personal.” While testator eligibility may be broad, the form of the will itself is more specific. For a will to be valid, it typically must be “in writing” and be signed by the testator. See RCW 11.12.030. A valid will must also have two witnesses. This can be manifested in two ways, either (a) by signature at the end of the will itself, or (b) by completing a separate affidavit. If those key requirements are met (will is in writing, signed by the testator, and witnessed), then the document comprises a valid will. (Note: once a will is created, it is imperative that the original be preserved. To perform a valid probate will a will, the original must be produced. A photocopy or scanned version of the will is insufficient.)

Wills must be witnessed, here’s how (and why)

It is important to note that the relative position of the witness may be an issue in the creation of a will. Because of the inherent difficulties in undue influence upon seniors, Washington State has a specific code to deal with witnesses to wills who ALSO are included as beneficiaries of the estate. According to RCW 11.12.160, “(1) An interested witness to a will is one who would receive a gift under the will . . . (2) A will or any of its provisions is not invalid because it is signed by an interested witness. Unless there are at least two other subscribing witnesses to the will who are not interested witnesses, the fact that the will makes a gift to a subscribing witness creates a rebuttable presumption that the witness procured the gift by duress, menace, fraud, or undue influence.” Put another way, if an individual is both a witness to a will and an interested party, there is a built-in, though rebuttable, assumption that the gift from the will was obtained through nefarious means or undue pressure.

This does not mean that if that situation arises that the interested party receives nothing from the estate. RCW 11.12.160 goes on to state that “(3) If the presumption established under subsection (2) of this section applies and the interested witness fails to rebut it, the interested witness shall take so much of the gift as does not exceed the share of the estate that would be distributed to the witness if the will were not established.” In other words, if the witness is an interested party, he or she can only receive what that person would have been entitled to should the will not have been created in the first place. Often times, that means nothing, as the distribution is essentially being controlled as though the estate was “intestate” (meaning without a will, and thus controlled by the RCW’s statutes on distribution).

Helping with Power of Attorney decisions

Another important estate planning document is the power of attorney². This document authorizes a person of your choosing to act on your behalf in conducting financial matters, signing papers, making health care decisions, or overseeing your other affairs.

Though a power of attorney may be a non-lawyer or a lawyer, you must designate this individual separate from any existing representation agreements you have with an attorney for handling legal matters. This document is highly important should you become temporarily or permanently disabled or incapacitated.

Contact a Seattle and Tacoma estate planning lawyer for a consultation

The experienced estate planning attorneys at the Dickson Frohlich Phillips Burgess in Seattle and Tacoma know how to draft important documents so that your intentions are protected after your death.

¹https://app.leg.wa.gov/rcw/default.aspx?cite=11.12.020

²https://app.leg.wa.gov/rcw/dispo.aspx?cite=11.94