CHAPTER 7 2:15 – 3:15pm Drafting Wills for Families ...
Transcript of CHAPTER 7 2:15 – 3:15pm Drafting Wills for Families ...
CHAPTER 7
2:15 – 3:15pm
Drafting Wills for Families including Guardianships and Trusts
for Minors and Special Needs
Christopher M. Henderson Dussault Law Group
PowerPoint distributed at the program and also available for download in electronic format: 1. Drafting Wills for Families Electronic format only: 1. Drafting Wills for Families Electronic versions of these documents are available on the KCBA website:
https://www.kcba.org/cle/EventDetails.aspx?Event=51013
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Drafting Wills for Families
Presented byChris Henderson
Dussault Law [email protected]
www.dussaultlaw.com
The Basics
• Explaining The Last Will and Testament to a Family Clienty
• Gathering Client Information
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Guardians
• Minors
• Qualification of Guardian• Qualification of Guardian
• Incapacitated Person
• Standby Guardian
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Financial Management
• UTMA
Age of Distribution–Age of Distribution
–Advantages and Disadvantages
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Financial Management
• Trust for Minor
Ascertainable Standard–Ascertainable Standard
–Spendthrift
–Distributions / Termination
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Financial Management
• Selection of Trustee/Custodian–Coordination with GuardianCoordination with Guardian
–Qualities of Trustee
–Alternative Trustee Arrangements
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Personal Representative
• Qualities
N I t ti P• Non‐Intervention Powers
• Bond Waiver
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Reciprocal Wills
• Revocable by Default
• Agreement not to AmendAgreement not to Amend
• Considerations for Drafting
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General Provisions
• Revoking Prior Wills
N i I t t t H i• Naming Intestate Heirs
• Predeceasing Heirs
• Disposition of Personal Property
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Checklist
• Payment of Debts and Expenses
• Payment of Taxes
• Specific Bequests
• Distribution of Remainder
• Attestation & Witnesses
• Self‐Proving Affidavit
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Other Common Scenarios
• Pet Trust
N Citi S• Non‐Citizen Spouse
• Other Spousal Trusts
• Multiple Trusts in One Will
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Thank You!
Questions: Chris Henderson
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Disclaimer & Notice• This presentation and written materials are designed to provide
accurate and authoritative information in regard to the subject accurate and authoritative information in regard to the subject matter covered. They are provided with the understanding that the presenters are not engaged in rendering legal, financial or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.
• Please keep in mind all written materials and power point slides are the intellectual property of the Dussault Law Group. These materials may not be distributed without the express written consent of the authors.
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DRAFTING WILLS FOR FAMILIES
I. The Basics Clients contact attorneys to prepare a will with a wide range of expectations. Many
clients have little or no understanding of what they need – they have come to an attorney because
they have been advised to do so by trusted friend/family member/professional or because they
have a sense this is something people need to do when they reach a certain age or level of
financial security. Others will arrive thoroughly familiar with how wills work; they may have
executed several with prior attorneys and are coming to you for an update based upon a recent
change in their circumstances, the law, or simply the passage of time. It is the attorney’s
responsibility to not only prepare documents for individuals with this wide range of
sophistication, but also to ensure that they understand the documents the attorney is preparing on
their behalf.
A. Explaining The Last Will and Testament to a Client A last will and testament addresses four major areas of concern for the family client:
naming the appointed guardians to care for minor children or disabled individuals; establishing
how to manage assets left behind for children or others; preserving wealth by reducing or
eliminating taxes; and to providing direction in administering the client’s estate.
It is essential that the client understand several constraints as well, primarily that the will:
is revocable until death, serves no purpose until death, and does not exercise absolute control
over any of the above mentioned issues. For each of these issues, clients (and attorneys) should
also understand what happens if they die without a will.
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The first thing clients should understand when considering how a will controls the
transfer of their wealth is which assets they may control through the terms of their will. Assets
generally subject to transfer by a will are called “probate assets.” The most common probate
assets are personal property, bank and brokerage accounts, any property interest in which the
person is the sole owner or a tenant in common. Commonly owned assets that are not controlled
by a will include assets subject to joint tenancy (or bank accounts) with right of survivorship,
payable on death or trust bank account, a trust of which the person is grantor and that becomes
irrevocable only upon the person's death, community property agreement, individual retirement
account, a life insurance contract, or an employee benefit plan.1 However, most assets with a
beneficiary designation can be controlled by the will if the beneficiary is the client’s estate.2
B. Gathering Client Information Client information is principally gathered in two ways – through an intake form and an
initial client conference. An effective intake form will be used as a filter for business purposes,
as a guide for the initial client conference, and as a roadmap for the attorney and paralegals in
drafting documents. It should include sufficient questions for the attorney to determine if there
are additional issues that need to be explored during drafting – such as whether the estate will be
subject to state or federal estate taxes, the extent of assets which are nonprobate, any significant
1 Importantly, some of the aforementioned assets can be controlled by a will under certain conditions. Confusingly, those assets are defined as “Nonprobate assets” in RCW 11.02.005(10). The assets which under no condition can be controlled by the provisions of a will are described as “not” nonprobate assets under the same definition. In turn, RCW 11.11.020 (often referred to as the “Superwill” statute) describes the circumstances under which a will can control certain nonprobate assets. A more thorough discussion of this issues falls outside the scope of this presentation, but for a recent discussion in the courts, see Manary v. Anderson, 292 P.3d 96 (Wash. 2013). 2 Note that this brings these assets into the estate and may have other unintended consequences.
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disparity in the value of a couple’s separate property, any unusual or especially important
property interests and any heirs to be disinherited.
Clients very often come with an intake form that is precisely one half complete. They
have either been attentive to issues that are not principally financial in nature (personal
representative, guardians, trustees, specific bequests) or they have been attentive to those that are
(e.g. the extent of their estate, the form of ownership and value of each asset, names of financial
planners, accountants and other professionals). An effective intake form guides the client
conference even if incomplete by providing the attorney with insight into what issues the client is
interested in and thinks he/she understands, and what issues the attorney may be explaining for
the first time.
II. Guardians for Children and Disabled Beneficiaries It is very common for clients to have their first will prepared when their primary concern
is not how assets will be distributed, but who will care for their minor and/or disabled children.
The decision may be a substantially (and mechanically) different one for minors and for disabled
children.
For minors, RCW 11.88.080 permits a person to name a guardian for their minor children
by will or durable power of attorney. The person may be required to furnish a bond, pursuant to
RCW 11.88.100 and RCW 11.88.110, but the court is required to “confirm the parent's
nomination unless the court finds, based upon evidence presented at a hearing on the matter, that
the individual nominated in the surviving parent's will or durable power of attorney is not
qualified to serve.3” For most people, the primary consideration is simply that their children be
3 RCW 11.88.020 describes the qualifications for service. Notably, it excludes anyone who is:
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raised in a loving home with people whose values reflect, as much as possible, their own. It is
often helpful to ensure that clients have also considered the following the specific issues:
(1) the age of the guardian when the children are teenagers (e.g. people who want
to name their parents are advised to also name back-ups and perhaps even a
plan to transfer guardianship as the children get older);
(2) where the guardian lives;
(3) the guardian’s financial ability to serve and the guardian’s support network;
(4) the current relationship between the guardian and the children; and
(5) if the guardian will raise the children in a specific religious tradition.
For individuals who are already guardians of an adult found to be incapacitated as to their
person or estate under RCW 11.88, the situation is different, although the above considerations
remain. In this case, a guardian named in the will serves as a recommendation to the court,
however the court would undergo the appointment process specified in RCW 11.88 for the
appointment. Moreover, there is a separate process by which successor guardians are expected
(a) under eighteen years of age except as otherwise provided herein; (b) of unsound mind; (c) convicted of a felony or of a misdemeanor involving moral turpitude; (d) a nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and caused such appointment to be filed with the court; (e) a corporation not authorized to act as a fiduciary, guardian, or limited guardian in the state; (f) a person whom the court finds unsuitable.
RCW 11.88.020(3) also provides that guardians must complete certain training requirements.
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to be named under RCW 11.88; a standby guardian can be named by the guardian by
designation. The standby guardian serves as back-up when the guardian is unavailable, and:
shall have all the powers, duties, and obligations of the regularly appointed guardian or limited guardian and in addition shall, within a period of thirty days from the death or adjudication of incapacity of the regularly appointed guardian or limited guardian, file with the superior court in the county in which the guardianship or limited guardianship is then being administered, a petition for appointment of a substitute guardian or limited guardian. RCW 11.88.125(1).
Note that naming couples in either scenario can be problematic if a couple later divorces.
If possible, it is best to name the primary person as guardian alone, or account for the possibility
of divorce in the document.
Sample Language for Naming Minor Guardians:
In the event that my spouse, _______, predeceases me, and _______ has yet
reached the age of majority (age 18), I direct _______ to serve as Testamentary
Guardian of the person or estate of _______ until _______ shall reach the age of
majority.
Sample Language for Guardians for Disabled Beneficiary:
If I should die with my spouse not surviving me and having already obtained a
Guardianship or Limited Guardianship for _______ and without having
designated a Standby Guardian for _______, then I designate _______ as Standby
Guardian and request that _______ petition the court to be appointed as Full or
Limited Guardian of the person and/or estate of _______.
If I should die with my spouse not surviving and not having already obtained a
Guardianship or Limited Guardianship for _______, or upon the date said child
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attains eighteen (18) years of age, then I request that _______ petition the court to
be appointed as Full or Limited Guardian of _______.
III. Financial Management for Minors and Disabled Beneficiaries
A. Uniform Transfers to Minors Custodial Account There are several ways to manage funds distributed to children. The easiest way to do so
is simply to direct funds to a custodial account under the Uniform Transfers to Minors Act, RCW
11.114. Doing so allows the testator to indicate the purpose for the funds, and empowers the
custodian similarly to a trustee with the same responsibilities and some specific additional
specific responsibilities. See, e.g., RCW 11.114.120 “Care of Custodial Property”. This vehicle
may be used for anyone considered a minor under the UTMA – anyone under 25 years old.
RCW 11.114.010(11). By default, a transfer made to a custodial account for the benefit of minor
by will, under the UTMA, be distributed out of the custodial account at age 21. See RCW
11.114.200(1)(a), RCW 11.114.050. However, this can be extended to 25 at the election of the
testator. RCW 11.114.200(2). The principal advantage of using these accounts is that they are a
simple, inexpensive means of transferring money for a minor’s benefit with all of the protections
of most trusts. The custodian: has the responsibilities of a fiduciary; may be ordered by the court
to obtain a bond; and may be directed to make distributions only for a certain purpose. The
principal disadvantage is their lack of flexibility – for most clients, that lack of flexibility is
particularly important in terms of distributions.
Sample UTMA Custodial Account Language
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If _______ is under <appropriate age, twenty-one (21) or twenty-five (25)> years
of age at the time of distribution, _______’s share shall be held in a custodial
account under the Uniform Transfers to Minors Act, as codified in RCW 11.114,
to be held and applied on _______’s behalf until _______ reaches <appropriate
age, twenty-one (21) or twenty-five (25)> years of age. The custodian may make
discretionary distributions for the health, education, welfare and support of the
beneficiary. I nominate ______________ of ______________, ______________,
as custodian. If ______________ is unable or unwilling to act as custodian, then I
nominate ______________ to serve as successor custodian.
A. Trusts for Minors A Trust is an separate entity that possesses assets managed pursuant to the terms of a
Trust Agreement. A trust has three parties: the Trustor (who funds the trust), the Trustee (who
manages the trust), and the beneficiary(ies) for whose benefit the trust was created. Within this
broad framework there is tremendous flexibility in how a trust operates, and how each of these
roles is managed. A common use for trusts is to be established at death by a will (a testamentary
trust), often the benefit of a child or other beneficiary. There are a number of common issues to
consider when drafting a trust for a minor beneficiary.
First, under what conditions should trust resources be used for the benefit of the
beneficiary. These conditions must be delineated by “an ascertainable standard,” creating a
definite obligation for the trustee and placing certain kinds of distributions outside the trustee’s
control. However, a trustee may be given broad discretionary authority to determine whether a
particular expense falls within the standard described in the trust agreement. A common
standard for a minor trust would include support, maintenance, education, health and care. A
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client may wish to permit other expenses as well, that might not fall under any of these
categories, such as travel or the down payment on a home. You should ensure that all intended
distributions are expressly permitted by any trust incorporated into the client’s will.
Sample Minor Trust Purpose Language
Purpose: The express purpose of this Testamentary Trust is to provide care,
support, maintenance, education, and health for ______________. The Trustee
shall have the discretion to use so much of the income or principal as the Trustee
deems appropriate to meet the beneficiary's needs after consideration of the
beneficiary's other income and resources. The Trustee may, but shall not be
required by any agency, party or judicial entity to, invade principal to meet the
beneficiary's needs. Such invasions are to be made solely at the discretion of the
Trustee.
It is also most often appropriate to include protection from creditors in a trust prepared
for a minor. This protection is commonly referred to as a “spendthrift provision.” The purpose
of the spendthrift provision is to ensure that the beneficiary does not find a way to create
obligations on the trust which essentially allow him/her to leverage the value of the Trust by
anticipating its eventual distribution. If a beneficiary is able to do so, the purpose of the trust –
protecting the assets from a child’s unwise spending decisions – may be frustrated.
Sample Spendthrift Language.
The beneficiaries shall have no interest in either the principal or income of this
Trust until such income or principal is actually distributed to any beneficiary. The
assets of this Trust shall in no way be assignable or alienable by or through any
process whatsoever. The assets of the Trust shall not be subject to garnishment,
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attachment, levy, or any other legal process of any court from any creditor of any
beneficiary, nor shall the assets be an asset in any future bankruptcy of any
beneficiary.
The last major component of a trust for a minor beneficiary is a termination provision. While
there is enormous flexibility in determining the appropriate termination provision for the
particular client, clients often express an interest in distributing a substantial portion of the
principal held by the trust at several different ages. This can be accommodated with the
following language, or something similar:
Sample Minor Trust Staged Distribution Language.
The term of this Testamentary Trust shall expire upon ____________ attaining
the age of ________ years, at which time the net assets remaining in the
beneficiary’s Trust share shall pass and be distributed to that beneficiary outright.
Interim distributions prior to final distribution at age ________ shall be made at
the following intervals:
1) ____________ of the beneficiary’s Trust share at age ____________, and
2) _____________ of the balance of the beneficiary’s Trust share at age.
If ____________ has already reached any of the designated ages when
that beneficiary’s Trust is funded, the distributions outlined above for the ages
have already reached shall be made to the beneficiary at the time of funding
hereof.
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B. Trusts for Disabled Beneficiaries (Special Needs Trusts) It is possible to draft a trust for a disabled beneficiary which allows the beneficiary to
retain access to means tested benefits. In order to do so, the trust must meet several specific
requirements; a thorough discussion of these requirements could be (and regularly is) the subject
of a multi-day continuing legal education course, they are briefly addressed herein.
In general, the beneficiary must be disabled, the purpose of the trust must be for extra and
supplemental purposes, rather than for the basic support of the beneficiary (e.g. “health, care,
support and education” as discussed above). In addition, the trustee must not make cash
distributions directly to the beneficiary and the trustee’s distributions must be discretionary. The
reason behind each of these constraints is that beneficiary is not intended to receive benefits from
the trust that should/could be provided by a public benefits program. The most common of these
programs is Supplemental Security Income (SSI); it also serves as a gatekeeper to certain other
programs (e.g. Medicaid), so trusts are often drafted for specific compliance with the SSI
guidelines.
The trust should require that all payments for goods or services for the benefit of the
disabled beneficiary, including the payment of taxes and other known expenses, will be made by
the Trustee directly to the provider. Putting the funds into the hands of the beneficiary for the
purpose of paying for a supplement need defeats the purpose – the mere receipt of the funds
would render the beneficiary ineligible for the benefit. The essential terms of the purpose
statement for a special needs trust follow:
Sample Special Needs Trust Purpose.
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The express purpose of this Testamentary Trust is to provide for ____________’s
extra and supplemental care, maintenance, support and education in addition to
and over and above the benefits ____________ otherwise receives as a result of
____________ handicap or disability from any local, state or federal government,
or from any other private agencies, any of which provide services or benefits to
disabled persons. It is the express purpose of the Trustor to use the Trust estate
only to supplement other benefits received by the beneficiary. To this end, the
Trustee may provide such resources and experiences as will contribute to and
make the beneficiary's life as pleasant, comfortable and happy as feasible. This
Trust is to be considered as a discretionary, and not a basic support, trust. This
Trust estate shall not be used to provide basic food or shelter, nor be available to
the beneficiary for conversion for such items, unless all local, state and federal
benefits for which the beneficiary is eligible as a result of disability, have first
been fully expended for such purposes or unless the Trustee determines that
preservation of full benefit eligibility is not in ____________’s best interest.
When including a special needs trust in a will, the client and drafter should recognize that
the trust will not be effective if the beneficiary receives other assets from the will that would
disqualify him or her from eligibility for means tested benefits. Not only should the will not
include the beneficiary in other distributions, they should expressly exclude any individual who
would have rights to a distribution as an omitted spouse or child under Washington law (see
below).
C. Selection of Trustees / Custodians There are a wide variety of considerations with selecting the Custodian of a UTMA
Account or a Trustee that need to be considered. First and foremost is balancing the
responsibilities of the Trustee/Custodian with those of the Guardian. Depending upon the
individuals involved, the amount of money to managed, and the complexity of the estate and
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guardianship scenarios, it may be sensible to have the same person serve as Guardian and
Custodian/Trustee for efficiency and ease of management. However, the two roles require very
different skill sets so the same individual may not be the right choice for both. The
Custodian/Trustee may need to provide reports and accountings of assets, and will be responsible
for investing and managing the assets prudently. Their role may require significantly more
coordination with tax and/or legal professionals than the guardian’s role, but less day to day
activity. Even where a single individual is capable of filling both roles, separating the roles
allows each individual to exercise some oversight over the other.
Selection of a Trustee requires similar, but not identical, considerations to the selection of
a Guardian. The single most important value of the trustee is integrity – to be certain the assets
will in fact be managed responsibly. It may be useful to ask clients to consider the following
qualities and their relative importance to the client, after explaining the role of the Trustee:
(1) Ability to invest on his or her own;
(2) Ability to seek out good investment advisors;
(3) Shares client’s values;
(4) Will provide sound guidance to the beneficiary, if applicable;
(5) Knows the beneficiary and understands his/her needs; and
(6) The current relationship between the client and the proposed Trustee.
In addition, the Trustee’s responsibilities may be further separated, and often are. Trust
Protectors, Trust Advisory Committees, and the selection of an Investment or Financial Trustee
are common ways to divide responsibilities. Briefly, a Trust Protector is a named individual who
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exercises some oversight over a Trustee and has some authority over them. Most typically, they
have access to information about the Trust and the authority to remove a Trustee for any purpose
– a successor would then be named in whatever manner is provided for in the Trust document.
The idea of a Trust Protector is to avoid significant mismanagement. A more common scenario
for trusts in the family/minor/special needs context is a Trust Advisory Committee. This is a
committee made up of individuals with an interest in the beneficiary’s wellbeing. It may involve
the trustee, family members, friends, professionals familiar with a disabled beneficiary’s
condition or others. The committee is typically given authority to take broad actions, such as
meeting annually and developing a general budget to which the Trustee is to adhere. The
committee may or may not be directly empowered to remove a Trustee as well. A final, and
common, structure is for one Trustee to be primarily responsible for being aware of the needs of
the beneficiary to managing distributions for the person’s benefit. A separate trustee, often an
institutional trustee such as a bank or trust company, is responsible for the management of the
assets contained in the trust.
IV. Personal Representative and Non-Intervention Powers
The Personal Representative is the person who oversees the administration of the estate.
In Washington, this process can be made simpler and less expensive by granting the person
“nonintervention powers” in a will. A personal representative granted nonintervention powers
can essentially handle all claims against the estate and the distribution of assets pursuant to the
will without further court proceedings until the close of the estate. RCW 11.68.090 describes in
some detail the extent of the nonintervention powers. Similarly, a client may choose to waive a
bond requirement in order to provide for a more efficient probate. Pursuant to RCW 11.28.185,
a personal representative will be required to obtain a bond unless that requirement is waived or a
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specific exception applies. Providing, in the will, for the waiver of the bond requirement is one
of the exceptions listed.
A note about nonintervention powers: for most individuals and couples in Washington,
and particularly for the clients this program focuses on, a will is the correct centerpiece for
managing the transfer of wealth. Sometime clients (especially from another state) will seek to
avoid probate and therefore want to discuss a living trust. It is important to understand why they
are seeking to avoid probate – most often this is because they are familiar with probate in certain
other states that require many trips to court and attorney fees may be a substantial portion of the
estate. Probates are relatively inexpensive in Washington and can proceed quite quickly
compared to these states. Because a will is generally simpler to set up, requires less (or no)
effort to maintain and is relatively less expensive, it is generally a better option than a living trust
for family clients.
V. Reciprocal Wills The most common will prepared or families is a reciprocal will between spouses, where
all assets are left to the surviving spouse and each spouse has identical provisions upon the death
of the second spouse. It is important to assess at the outset whether the couple wants to create a
binding obligation that neither will be amended without the consent of both parties. Under
Washington law, the couple may create a binding obligation upon one another only by contract.
A simple contract entered into by both parties, observing the requirements of a community
property agreement, may create a binding obligation not to revoke or amend a will. Because a
reciprocal will brings a heightened probability that such a contract exists, it may be useful to
include the contract’s existence (or lack of existence) in the will itself, e.g.:
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Sample Language Regarding Power to Revoke.
The terms of this Will and the Will executed on the date hereof by ____________
are essentially reciprocal. The wills <are or are not> executed pursuant to
<an/any> agreement between us <of even date herewith> and <may/may not> be
changed or revoked according to the testator’s wishes.
In families where there are children from prior marriages, or there are other concerns about
distribution of assets, it may be wiser to secure the children’s interest in assets while permitting
the spouse substantial control through the use of one or more trusts, discussed briefly below.
VI. General Provisions There are several provisions drafters should always include when preparing a will; they
are discussed briefly below.
A. Revoking Prior Wills Some testators will not recall the existence of a prior will, or will recall the wrong will as
their last. Drafters are wise to clarify that the current will is intended to revoke all prior wills.
Sample Language Revoking Prior Wills.
I, ____________, now residing at ____________ do hereby make, publish and
declare the following to be my Last Will and Testament, hereby revoking any and
all Wills, Codicils and Testamentary Dispositions heretofore made by me,
including, but not limited to that last Will and Testament executed____________.
B. Naming Intestate Heirs Certain omitted intestate heirs retain inheritance rights under Washington law if they are
not expressly excluded from the will. RCW 11.12.091 and 095 describe the effect of omitting a
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child and spouse, respectively, from a will. These most often occur in the case of a family
dispute, a disabled beneficiary (discussed above), or marriage or childbirth which occurs after
the will has been executed. Accounting for a future spouse or future children may be an
important aspect of a well drafted will depending upon the client’s situation.
In both cases, the child or spouse must “receive an amount equal in value to that which
the [spouse, domestic partner, or child] would have received under RCW 11.04.015 if the
decedent had died intestate, unless the court determines on the basis of clear and convincing
evidence that a smaller share, including no share at all, is more in keeping with the decedent's
intent.” RCW 11.12.091(3), RCW 11.12.095(3).
Pursuant to both statutes, if the will names or provides for the individual specifically, by
reference to a future child or spouse, or, in the case of child, by reference to certain classes of
individuals to which the child belongs,4 the spouse or child will not be treated as omitted.
Appropriate language to ensure that (a) there are no omissions or (b) omissions are clearly
intentional is very situation dependent. However it should be noted that simply provided a
nominal interest to an individual is unwise – such an approach does not qualify as “naming or
providing for” the individual under the will, thus there must be clear and convincing evidence
that the omission is intentional for it to be effective. See RCW 11.12.091(2)(c), RCW
11.12.095(2)(c).
4 “A reference in a will to a class described as the children, descendants, or issue of the decedent who are born after the execution of the will, or words of similar import, constitutes a naming of a person who falls within the class. A reference to another class, such as a decedent's heirs or family, does not constitute such a naming.” RCW 11.12.091.
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C. Predeceasing Heirs To facilitate orderly administration, it is generally advisable to treat individuals who in
fact die after the testator should be treated as predeceasing him/her. A very brief period of time
is covered by law – the uniform simultaneous death act provides that an heir or beneficiary will
be treated as predeceasing the testator if they did not survive the testator by 120 hours (unless
this would result in the testator dying intestate). RCW 11.05A.020. A period of time long
enough for the estate administration to have effective begun is often appropriate, and between 90
and 150 days is common.
Sample Language on Predeceasing Heirs and Beneficiaries.
For purposes of this Will, any person entitled to take hereunder who does not
survive me by ____________ days shall be deemed to have predeceased me, and
shall take nothing hereby.
D. Disposition of Personal Property The ability to control the disposition of particular items of personal property, such as
family heirlooms, in a legally binding manner is often another important reason that families
decide to draft a will. This information is typically included in a section on specific bequests –
and items that the testator has relative certainty on may be appropriate to include in the will
itself. However, RCW 11.12.260, permits the testator to direct the disposition of tangible
personal property through a separate writing, so long as the writing is referred to in an unrevoked
will, is written in the handwriting of, or signed by, the testator, and describes the property and
recipients with reasonable certainty. RCW 11.12.260(1).
Sample Language on Disposition of Tangible Personal Property.
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I specifically give, devise, bequeath and convey all other tangible personal
property, including photographs, remaining personal jewelry, wearing apparel,
furniture, furnishings, artwork, vehicles, and all other of my personal effects to
my spouse. In the event that my spouse predeceases me, I direct that all my
personal effects, not specifically mentioned herein, are to go to my personal
representative for distribution according to my desires, which shall be made
known to my personal representative by a separate letter of instructions executed
by me prior to my death pursuant to RCW 11.12.260. The aforesaid letter of
instructions may be added to or amended by me at any time after the execution of
this Will. If I do not provide my personal representative with a letter of
instruction, then my personal representative shall distribute my personal property
in an equitable manner as he or she sees fit.
E. What Else Needs to Be Include - A Quick Checklist Payment of Debts and Expenses – Direct the Personal Representative to pay for
burial, funeral and other expenses as due
Payment of Taxes – Ensure that taxes and related liabilities are paid prior to
residual distributions
Specific Bequests – Distributions that take precedence over others. Consider
whether it is appropriate for any special needs trust to be funded with a specific
bequest or a share of the residual estate.
Distribution of Remainder
o Per stirpes vs. Per capita
o Treatment of Predeceasing Beneficiaries (children)
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Attestation & Witnesses
Self-Proving Affidavit
VII. Other Common Issues
A. Pet Trust Under RCW 11.118 a trust for the benefit of a “nonhuman animal with vertebrae” is valid
in Washington State. These trusts are not generally acceptable under the common law of trusts,
and have some specific applicable statutory provisions (e.g. no reports to beneficiaries are
required; protection of distributions for benefit of animal).
B. Non-Citizen Spouse When a US Citizen dies leaving assets to a non-citizen spouse the transfer may be subject
to substantial taxes. Particularly in a border states and large metropolitan areas, this scenario
occurs with some frequency. It is important to recognize this situation and, if faced with it,
recognize the planning opportunity that exists. A Qualified Domestic Trust (or QDOT) is a
common means of transferring assets without subjecting them to these taxes. It includes a
number of specific requirements – principal among them is that the funds be controlled by a
trustee who is a “US Person.”
C. Other Common Trusts Re: Spouses As mentioned above, there may be a desire to retain some control over the disposition of
assets after the testator’s death. In the family context, this most often means permitting
designated assets to benefit to the spouse to a certain extent, while preserving the remaining
assets for children. There are two principal means of doing so – the Qualified Terminable
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Interest in Property Trust (QTIP) and the Bypass Trust. A QTIP is properly thought of as a trust
that primarily benefits the spouse, but the testator controls what happens to trust controlled assets
at the death of the spouse. A Bypass Trust is focused primarily on benefiting children at the
spouse’s death, but may permit limited distributions to the spouse during his/her lifetime.
Substantial additional considerations outside the scope of these materials must be considered
prior to incorporating either trust into an estate plan.
A. Multiple Trusts in One Will There are certain provisions which will be common to virtually all trusts. When more
than one trust is included in a document, it may be more efficient, and easier for the family to
client to read, to include common provisions in a single section of the will. This would include
provisions regarding the following: Exhaustion of Trust Assets, Amendment of Trust
Agreement, Situs, Spendthrift Clauses (see above), Accounting Requirements, General Trustee
Powers, Consolidating Trusts, and Successor Trustees
VIII. Summary Although drafting family wills for the 99% does not include all of the tax planning
strategies that would be required for the very wealthy, it requires sensitivity to each families’
specific needs, knowledge of the tools available to implement those needs, and the ability to
educate and advise the family on the various choices they will be facing. This presentation has
endeavored to cover in some detail the most common situations families will address, and to
touch many others that often arise as well. However there is no end to variety of circumstances
and needs for each individual client.