INTESTACY YOUR ESTATE

AND

COMMON QUESTIONS
When Someone Dies and Leaves Behind an Intestate Estate, the Family Members of the Deceased Person are Often Left With Some Unanswered Questions

Washington Estate Planning Attorney

GEOFFREY GARRETT

In our second look at intestacy in the state of Washington, were going to look more closely at some commonly asked questions that many people have. Intestate estates are unfortunately common because so few people actually get around to making an estate plan. When someone dies and leaves behind an intestate estate, the family members of the deceased person are often left with some unanswered questions. To help answer many of these questions and to give you some practical knowledge that you might be able to use should you, one day, face an intestate situation, here are some questions you might want to consider. WHAT ABOUT SURVIVING SPOUSES? Washington is one of the states that divides the property owned by married couples into two specific categories: separate property and community property. To understand what a surviving spouse of a person who dies intestate inherits, we will have to take a closer look at the distinction between these two categories. When a couple acquires property while they are married, that property is known as community property. Regardless of who actually pays for, in whose name the property is titled, or what the circumstances of its acquisition or use were, married spouses equally own the community property. So, when a spouse dies leaving behind an intestate estate, the surviving spouse effectively becomes the automatic sole owner of that community property. In other words, the surviving spouse automatically inherits all of the community property the couple owned.

Byrd Garrett PLLC|Intestacy and Your Estate: Part 2 of 2

However, there are some key exceptions to the community property rule. For example, a gift a spouse received during the marriage is not considered community property, nor is any inheritances that a spouse received while the couple was married. Additionally, any property either spouse owned before the marriage, in which the spouse kept separate while the couple was married, is not included in the community property category. This type of property is known as separate property. WHAT DOES A SURVIVING SPOUSE INHERIT? Now that you know the difference between community and separate property, you can better understand how a surviving spouse will inherit property after the other spouse dies intestate. First, the surviving spouse automatically inherits the other half of the community property. Second, the spouse will also inherit a share of the separate property. The size of the share will depend on if there are other close family members who survived the deceased spouse. For example, if the deceased spouse also left behind children, those children will inherit half of the separate property. The other half will go to the surviving spouse. Similarly, if the deceased spouse left behind parents in addition to a surviving spouse, but didnt leave children, those parents will inheri t one-quarter of the

Byrd Garrett PLLC|Intestacy and Your Estate: Part 2 of 2

separate property. The remaining three-quarters of the separate property, plus the community property, will go to the surviving spouse. The same one-quarter share will go to the siblings of the deceased spouse if there are no parents or no children. HOW DO PEOPLE ACTUALLY RECEIVE THEIR INHERITANCES? While its often fairly easy to determine who stands to inherit, the question of distributing the property so that it actually gets into the hands of the heirs is a little more complicated. Put simply, heirs dont receive their property until the probate process has been completed. The probate process is the set of procedures established under Washington law that control how the property of a deceased person must be handled and distributed. To start with, someone will have to begin the probate process. This is usually close family member or friend of the deceased person. That person will file documents with a Washington probate court and ask the court to name a personal representative. The representative, or estate administrator, is the person who is responsible for taking control of estate property and managing it until new owners can be identified. In intestate estate situations, because the deceased person did not leave behind a last will and testament, it falls to the court to choose who should serve in the role as personal representative. In most situations the court chooses the person who filed the documents that began the probate process. WHAT HAPPENS TO DEBTS? Another common question that many people have about intestate estate involves the question of the repayment of debt. A lot of people die not only leaving behind assets, but also debts that have to be repaid. These debts are usually not

Byrd Garrett PLLC|Intestacy and Your Estate: Part 2 of 2

the responsibility of the heirs or the family members of the decedent, but rather the responsibility of the estate. When a court appoints a personal representative, it falls to that representative to not only take control of estate property, but also notify potential creditors. If the creditors file a claim with the estate, the personal representative will have to determine if those claims are valid, and if so, use estate money to repay them. Family members of the deceased person typically do not have to repay his or her debts unless those debts were owned jointly. For example, if your brother dies leaving behind debts, you wont have to repay them. However, if you were the joint debt holder of one or more those debts, you would still have the obligation to repay them just like you would with any other debt under your name.

WHAT CAN I DO TO AVOID INTESTACY? Avoiding intestacy is easy to do when you create an estate plan. Simply by creating the proper estate planning tools, you can rest assured that you can make the inheritance choices you wish, appointed personal representative of your choosing, and avoid the Byrd Garrett PLLC|Intestacy and Your Estate: Part 2 of 2

other potential pitfalls that often arise with intestate estates. Beyond that, a good estate plan will give you the ability to avoid probate almost entirely, as well as other benefits that will protect you and your family. If you havent already done so, you should call our office as soon as possible to talk to us about what you can do to avoid intestacy.

Byrd Garrett PLLC|Intestacy and Your Estate: Part 2 of 2

About the Author Geoffrey Garrett

Geoffrey H. Garrett purchased assets of the law practice of Stanley R. Byrd in 2008. For more than twenty-seven years previously, he pursued two challenging careers simultaneously, as an attorney in an active sole practice and a senior pilot for a major airline, where he achieved the rank of B-747 captain in the international operation. He was honored as his airlines 2005 captain of the year in Seattle. He has been a frequent speaker on the subject of reorganizing troubled airlines, has written significant papers about airline code sharing and fleet restructuring in bankruptcy, and is the co-author with Stanley R. Byrd of estate planning basics in Washington. Mr. Garrett advises in matters of estate planning and probate, trust administration, guardianship and planning for special needs, elder law and asset protection. He assists owners of small businesses with respect to entity formation, administration and compliance, purchase and sale of businesses and succession planning. Experience Mr. Garrett served as a C-141 pilot during Viet Nam and completed a twenty year military career in the Air Force reserve. Early in his legal career, Mr. Garrett was a commercial and bankruptcy trial lawyer. Since 1988, he has practiced exclusively in estate planning and related fields of law and in small business law. From 2002 until 2006, he served as vice-chairman of the Official Committee of Unsecured Creditors in the multi-billion dollar bankruptcy of United Airlines.

Byrd Garrett PLLC|Intestacy and Your Estate: Part 2 of 2