Mullavey Prout Grenley & Foe LLP

Attorneys-at-law serving businesses
and individuals in Seattle, Alaska
and the Pacific Northwest

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ESTATE PLANNING FAQs

This information was prepared based on Washington law as a public service by Mullavey, Prout, Grenley & Foe LLP. It contains general information and is not intended to apply to any specific situation. The information is very broadly and simply stated. There are a number of exceptions and specific rules that apply to your particular situation and lead to a different result. If you need legal advice, live in a state other than Washington, or have questions, you should consult a lawyer.

I. Typical Estate-planning Documents

Living Will
Power of Attorney
Community Property Agreement
Last Will and Testament
Living Trust

II. Living Will

A Living Will, also called a Health Care Directive, tells your family and your doctors your wishes regarding life support, resuscitation, and feeding should you be in a permanently unconscious condition.

We recommend that you have one as long as you have no objection to a Living Will. Having a Living Will ensures that your loved ones do not need to guess, or even worse, argue about what your wishes are if you cannot speak for yourself (recall the Terri Schiavo case in Florida a few years ago).

III. Power of Attorney

A power of attorney gives someone (an attorney-in-fact) permission to take binding actions on your behalf in either the financial area, the health care area, or both.

In most cases, yes, everyone should have a Power of Attorney, so that someone you trust can act on your behalf if you are not able to.
If you do not have a Power of Attorney and become incapacitated, the court will likely need to appoint a guardian to care for your affairs. Not only will this guardianship likely cost $5,000 to $8,000 in attorneys' fees, Guardian ad Litem fees and costs to establish, it will likely cost $2,000 a year just in attorneys' fees to maintain the guardianship.

It depends on your Power of Attorney. You can choose to have your Power of Attorney effective immediately or only when your physical and/or mental disability has been established.

Yes, there are several different types of Powers of Attorney. The most common types are General Durable Power of Attorney, Health Care Power of Attorney, and Financial Power of Attorney.
The General Durable Power of Attorney gives your attorney-in-fact permission to make both financial and health care decisions for you.
The Health Care Power of Attorney only gives your attorney-in-fact permission to make health care decisions for you.
The Financial Power of Attorney only gives your attorney-in-fact permission to make financial decisions for you.

No. Your Power of Attorney expires at your death. Only a personal representative appointed by a court pursuant to your Last Will and Testament may act after your death.

We advise that you keep the Power of Attorney in a safe deposit box or a fireproof box at home and a copy of the document in an accessible place at home such as a desk or filing cabinet. You should mark on the copy of the document the whereabouts of the original.

The Power has to be recorded with the county auditor's office of the county in which real estate is located if the appointed attorney does any business with respect to real estate. There is usually no need to record a Power if no real estate business will be done by the Power. We recommend that you do not record your power of attorney until such time as there is a specific reason to do so.

IV. Community Property Agreement

Community property is property that is jointly owned by a husband and wife.
Each spouse has an undivided one-half interest in the couple's community property.
Generally, all property earned or acquired during a marriage, except property received as a gift or inheritance is community property.
Upon death each spouse has the right to dispose of his or her portion of the community property.

Separate property is property that is only owned by one spouse.
Separate property includes property owned before a couple's marriage and property received as a gift or inheritance that is kept in the name of the one spouse who acquired the property.
Upon death, each spouse has the right to dispose of all of his or her separate property.

A Community Property Agreement is a document that turns all separate property into Community Property either immediately or on death only.
A Community Property Agreement is typically effective upon the first spouse's death.
A Community Property Agreement can allow a couple to avoid probate of the first spouse to die's estate by transferring all property to the surviving spouse.
Typically a Community Property Agreement is not used when you have a taxable estate.

Maybe. You should talk to a lawyer to determine if one is appropriate in your situation.

Yes. You need a Last Will and Testament even if you have a Community Property Agreement.

V. Last Will and Testament

A Will is a legal document that states who should receive your property when you die.

In addition to naming the recipients of all of your property, a Will can be used to do such things as designate the guardian of minor children and/or create trusts for your spouse, children, or grandchildren.
Your Will also appoints the person you want to handle your affairs after your death (your Personal Representative).

Yes. Without a Will, your property may go to unintended beneficiaries. You do not need to have a large estate to need a will.

If you die without a Will a Washington state statute (RCW 11.04.015) will determine who inherits your property.

Yes. Your will only becomes effective at your death. You can change your Will as many times as you like before your death, as long as you have testamentary capacity.

You should review and update your Will as your conditions, circumstances, or wishes change; generally at least every two years.

People often refer to the entire estate settlement proceeding as "the probate". "Probate" is actually the process by which the court determines that the will is properly signed and witnessed and that the person signing the will was of sound mind and acting of free will when the document was signed.

Maybe. Washington has several rules that simplify or eliminate the probate process when you are survived by a spouse or have a small estate and do not own real property.

A Personal Representative is the person appointed to collect all of your assets, pay all of your debts, distribute all of you assets and wind up your affairs after you pass away.

A Credit Trust is a tax shelter tool. It is established in your Will for the benefit of your Surviving Spouse. The use of a credit shelter trust can reduce payment of estate taxes and provides the ability to avoid paying unnecessary estate taxes upon the death of the second spouse to die.

Maybe. You should consult with an attorney to determine if one is appropriate for you.

Not necessarily. For the most part, nonprobate assets pass outside of your Will.
In general, nonprobate assets are assets that have a designated beneficiary, are held jointly with another person ("JTWROS" or "JT TEN"), or are "payable on death" ("POD" designation) to another person.
You should talk to your attorney about your assets to determine how any particular asset will pass upon your death.
VI. Revocable Living Trust

A Revocable Living Trust is a trust that you create and use during your lifetime.
You can use the trust to hold your property.
The property placed into the trust during your lifetime will not go through the probate process, it will instead go through a trust settlement process upon your death.

Maybe. You should consult with an attorney to determine if one is appropriate for you. The cost and ongoing attention you must pay to a revocable living trust needs to be weighed against its benefits.

Yes. You need what is called a Pour-over Will. At your death, a Pour-over Will transfers any assets you hold outright to your trust.