See Below of Our Most Frequently Asked Questions

Estate planning is seldom something that can be achieved in a single appointment. 

The first step often involves an initial appointment with an attorney which generally consists of reviewing existing (potentially outdated) estate planning documents, identifying family, property, and any significant life changes or events that have occurred. 

An attorney will guide the discussion to help identify estate planning objectives (relevant tax strategies, legacy strategies). 

It is important to be frank, open and honest with the attorney. 

The second step often includes some investigative work on the client’s part to confirm the value or titling of their property.  Clients may also want to speak with individuals they are considering naming as fiduciaries. (A fiduciary may be an executor/personal representative or trustee or guardian or agent).

Planning documents will then be drafted by the attorney and provided to clients for review. 

The final step is for the attorney to finalize the documents and schedule an appointment for the clients to properly sign them. Final instructions may also be provided to assist with changing beneficiary designations or account titles.

When an attorney meets with clients to discuss an estate plan, the attorney often has several objectives. 

• First, the attorney needs information about the client, his or her family and loved ones. 
• Second, the attorney needs to know what the client owns, how the property is characterized, and how it’s titled, including whether there are designated beneficiaries, including “Pay on Death” or “Transfer on Death” beneficiaries. (How property is characterized and titled affects how it is distributed at death.) 
• Third, the attorney wants to know what the client’s goals are and what is important to the client. What is important to each client varies considerably and can change over time. 

Sharing this information not only establishes a foundation for a thoughtful discussion about a client’s estate planning goals, this discussion also often demonstrates that a client has the required capacity to execute estate planning documents.

A fiduciary has a duty to always act in the best interest of the principal (you). Paramount among the many responsibilities of the fiduciary is the duty of loyalty owed to the principal. Fiduciaries are often granted broad authority; therefore, persons named to act in such roles must be trustworthy. 

Naming a person as a fiduciary is not a gift; the responsibilities can be time-consuming, burdensome, and complex. Have a conversation with the person(s) you intend to name as your fiduciaries. Specifically, inquire whether they are willing to assume that role and whether they understand your intentions. 

A fiduciary is someone who makes decisions and/or manages assets for you and the document naming them will provide them with further guidance.

The following is a list and descriptions of various fiduciaries.

Agent:

• an individual entrusted to make decisions for healthcare and finances during life when the principal is incapacitated or has capacity but needs additional support and assistance.

Personal Representative or Executor or Administrator:

• an individual who administers an estate at death.

Guardian of Minor Children:

• an individual who has custody/control of minor children.

Trustee:

• an individual entrusted with the holding, management, and distribution of trust assets for the benefit of oneself and/or others.

Trust Protector:

• An individual or entity who oversees the trustee’s actions and management of the trust assets, and who may have authority to remove or replace the trustee.

Planning documents are drafted in such a way to:

1. protect a client from a potential risk of harm from an adverse party or event, and
2. ensure a client’s intentions are expressed clearly and precisely. 

The best way to influence these dual purposes is to use legal language, terms, and phrases that have been tried and tested with the court and the IRS to withstand challenges. 

Estate planning attorneys draft language that is “legally clear”, but this often creates legal documents which are much longer and contain more “legalese” than clients may prefer.

If a person becomes INCAPACITATED without a plan, RCW 7.70.065 provides “fallback” provisions for delegating healthcare decisions.

Where a patient has not planned and is not competent to give informed consent, the health care facility and/or medical professionals may obtain informed consent from the following hierarchy of individuals: 

1. a court-appointed guardian; an agent under a valid Durable Power of Attorney; 
2. the patient’s spouse or state-registered domestic partner; 
3. the patient’s children who are at least 18; 
4. the patient’s parents; and 
5. the patient’s adult siblings. (this is not an exhaustive list)

Importantly, where there is more than one in a class (i.e.: more than one child or sibling), the decision must be unanimous.

Unlike healthcare decision-making, there are no statutory “fallback” provisions for delegating general/financial authority. 

If a person becomes INCAPACITATED without a plan, a family member, friend, or other interested person must petition the court to manage his or her financial affairs (pay bills, manage accounts). This person is called a “conservator” and is largely responsible for the day-to-day financial decision-making.

A conservator is required to file annual reports and accountings as to the finances and welfare with the court and seek approval from the court for his or her actions as conservator. While conservatorship is necessary for protecting our community’s most vulnerable individuals, it results in a loss of liberty, autonomy, and privacy. Conservatorships are often costly because of the considerable liability involved.

If a person DIES without a plan, the laws of the State of Washington dictate who will receive the person’s property and who will act as the personal representative. 

This is known as an “INTESTATE” probate administration. Washington State law attempts to follow what most people would want. 

Nonetheless, failing to plan can cause delay, extra cost, and transfers of property to unintended persons.

A Health Care Directive often referred to as a “Living Will,” gives direction in advance about end-of-life care and is conditioned on the occurrence of a future medical condition. RCW 70.122.030 provides statutory form language, but this language can be modified to fit a client’s unique wishes.

Where the use of life-sustaining treatment only prolongs the moment of death AND where a person is (1) in a terminal condition where death is imminent; OR (2) in a permanently unconscious condition, a Health Care Directive can evidence a person’s wishes.

After executing a Health Care Directive with an estate planning attorney, it should be discussed with the family and/or the person named as the health care agent. It may also be something to share with a physician.

A Power of Attorney is a document that allows the “principal” (the person executing the document) to name another person (“agent”) to make decisions to manage their affairs (this may include health care or medical decision-making; it may also include financial or general decision-making).

A Durable Power of Attorney lasts through incapacity. For this reason, a Durable Power of Attorney is often referred to as one of the most important estate planning documents to have.

It is important to remember that not all Power of Attorney instruments are the same. The scope and effectiveness of the document may be tailored to the principal’s specific circumstances and needs. The document may give only very limited authority, or it may give broad authority, allowing the agent to do everything the principal could do. A Power of Attorney may be created for healthcare decision-making, general/financial decision-making, or both.

Whether and when an agent has authority will be determined by the document. A Power of Attorney may be effective “immediately” or “springing.” If it is effective immediately, an agent has immediate authority to act on the principal’s behalf. If the Power of Attorney is “springing”, an agent will not have authority to act on the principal’s behalf until certain requirements are met.

RCW 68.50.160 provides that absent written instructions signed by the decedent in the presence of a witness, the following individuals in the following order have the authority to direct the disposition of a decedent’s remains:

1. a designated agent,
2. a surviving spouse or state-registered domestic partner,
3. a majority of surviving adult children,
4. surviving parents,
5. a majority of surviving siblings, and
6. a court-appointed guardian.

In Washington State, it is important to put wishes to be cremated in writing to avoid family conflict and delay.

Beneficiary designations are often used for IRAs and other types of retirement accounts, investment accounts, and life insurance policies.

When a beneficiary is designated for an account or policy, the beneficiary designation, not the Will or Trust, controls how the asset/account is distributed. 

It is important that beneficiary designations coordinate with an estate plan. Failing to do so could defeat the overall estate planning objectives.

Assets held jointly with “right of survivorship” are not controlled by Will or Trust and often pass to the joint tenant(s) upon death, outside of the Will or Trust.

“Payable on Death” or “Transfer on Death” designations also transfer assets at death outside of the Will or Trust.

Careful attention must also be made to Joint Tenant with Right of Survivorship as such designations could result in an unintended bequest.

A Revocable Living Trust may serve as a substitute for a Will, but also allows for the management of assets during life.  A trust provides for the transfer of assets upon death outside of a probate administration, but only if assets are held “in trust.” 

If a Revocable Living Trust is used, it is also necessary to have a Will to direct that assets not titled in the Revocable Living Trust “pour” into the Trust at death. Be aware, a Revocable Living Trust cannot name a guardian for minor children; only a Will can do that.

In Washington, assets held in a Revocable Living Trust are subject to the same state and federal estate and income taxes as assets held in an individual’s name and are not afforded any protection from creditors.

Washington State is a “community property” state. While living in Washington, any property acquired (income/earnings) (or debt incurred) during a marriage, is characterized as “community property.” Thus, each spouse or registered domestic partner has a one-half interest (or liability) in the whole. 

A common misconception exists, however, that at the death of the first spouse or registered domestic partner, the deceased spouse’s or state-registered domestic partner’s assets will pass automatically to the surviving spouse or state-registered domestic partner. In fact, a spouse or state-registered domestic partner may pass their community property interest in an asset to anyone they want, including those individuals who are not their spouse or state-registered domestic partner. 

While the surviving spouse or state-registered domestic partner may be entitled to the decedent’s one-half interest in community property under the intestate laws of succession, the transfer of the decedent’s one-half interest to the surviving spouse or state-registered domestic partner will typically require some administrative process.

In Washington State, married couples and state registered domestic partners can make an agreement as to the character of their property.

They can also contract for the transfer of that property upon the death of the first spouse or state-registered domestic partner, thereby avoiding a more burdensome/complicated process. 

A Community Property Agreement can be a useful tool to transfer a decedent’s assets to the surviving spouse or state-registered domestic partner in an expedited way.

A Will directs:

1. how property is distributed at death, 
2. how debts and taxes are to be paid, 
3. who administers the “estate,” (or in other words pays the last expenses and distributes the assets), 
4. who will become guardian(s) of minor child(ren), and 
5. who will manage assets held in trust. 

In Washington State, there are specific, statutory formalities that are required for a Will to be valid. A Will may include several different types of testamentary trusts for the purpose(s) of:

1. tax planning,
2. holding title to real property outside of Washington,
3. providing for a second spouse, and
4. providing for minor children and/or disabled or incapacitated beneficiaries.

A gift list is a tool that directs the disposal of certain identifiable tangible personal property at death. 

A gift list is only valid if it is specifically referred to in a Will or Trust and must be signed and dated. 

A gift list can be changed at any time without changing the Will or Trust, and without visiting an attorney.

It is a fantastic tool for identifying a loved one to receive certain sentimental items.

Supplemental Care Trusts (aka Special Needs Trusts) are often used as a way of protecting important needs-based government benefits that a beneficiary with disabilities may be receiving or may be entitled to receive in the future. 

The assets in these types of trusts may be used to enhance the beneficiary’s life without disrupting the needs-based government benefits the beneficiary is receiving for life’s necessities.

There are two types of Supplemental Care Trusts (aka Special Needs Trusts).

A third-party special needs trust is a trust designed to hold the assets of someone other than those of the person for whom the trust is created. The terms of the trust may be included within the provisions of a Will (a “testamentary trust”).

Alternatively, a separate instrument may be used. With this type of third-party special needs trust, the assets do not belong to the beneficiary and therefore, there is no Medicaid payback upon the beneficiary’s death for any Medicaid benefits the beneficiary may have received during his or her life.

Importantly, there is a second type of Supplemental Care Trust (aka Special Needs Trust).

A self-settled/first-party supplemental care trust is a trust designed to hold the assets of the person for whom the trust is being created. 

This type of special needs trust may require court approval and court reporting. With this type of self-settled/first-party special needs trust, the assets have belonged to the beneficiary and therefore, there IS a Medicaid payback upon the beneficiary’s death for any Medicaid benefits the beneficiary may have received during his or her life.

Periodically reviewing an estate plan every few years or more is extremely important, especially if there are significant changes in circumstances. 

Significant changes include, but are not limited to, the death or disability of a family member, marriage, divorce or separation, births and adoptions, significant increases or decreases to asset values, acquisition of real property outside of Washington, a move to another state, and changes to the persons named as fiduciaries and/or beneficiaries.

It is also important to ensure that those assets passing outside the terms of a Will or Trust coordinate with the overall “Estate Plan.” This means periodically reviewing and ensuring that accounts are held and titled in specific ways and that beneficiary designations are up to date.

Cost is an important consideration when creating an estate plan. Be aware at the onset of how legal fees are generated. 

Ultimately, an attorney’s fees for services must not be unreasonable. 

Whether a fee is reasonable may depend on the following:

• time and labor required,
• novelty and difficulty of questions involved,
• skill required to perform services properly,
• fee customarily charged for similar services in the locality involved,
• the amount involved and the results obtained,
• time limitations imposed by the client or the circumstances (emergencies),
• nature and length of the professional relationship,
• experience, reputation, and ability of the lawyer to perform requested tasks,
• terms of the fee agreement, including disclosure to the client of material terms and knowledge of the lawyer’s billing practices.

Some attorneys charge flat fees for estate planning documents or services. Others charge for services by the hour. Some attorneys do a combination of these billing practices. 

Be sure to ask questions and have a clear understanding of the billing practices before engaging an attorney.

The ability to own property ceases immediately at death and all ownership of assets must be transferred to someone else. 

A probate administration is a court process for formally transferring a decedent’s assets to legal heirs or beneficiaries and winding up his or her affairs after death. 

The process is governed by state law. A probate administration can be “testate” meaning that a decedent had a valid Will, or it can be “intestate” meaning that the decedent died without a (valid) Will.

Property can be transferred outside of a probate administration through the use of trusts, property agreements, and non-probate transfers (payable on death, transfer on death, joint tenancies with right of survivorship or beneficiary designations.) 

All manners of passing an estate should be coordinated with an attorney in order to facilitate the most time-efficient, cost-effective, and appropriate transfer methods for each asset.

This is a common question without a straightforward answer. Typically, a probate administration lasts at least nine months, but an administration can sometimes last over a year or two depending on the complexity of the administration.

There are certain “waiting periods” that must expire before monies can be distributed. 

There is a creditor claim period and a will contest period that should lapse prior to making any distributions. 

Additionally, depending on the real estate market, the sale of real property may delay the completion of the probate administration.

Another factor affecting the length of a probate administration is the date of death. 

A probate administration of a person who dies nearer to the calendar year-end will likely have a shorter administration period than that of a person who dies at the beginning of the calendar year because final income tax returns are due April 15th of the year after death.

Adult guardianship and adult conservatorship are court-supervised processes established to protect those persons over eighteen who cannot protect or care for themselves. These processes are intended to be a last resort where there are no other means by which a person can get the necessary support and protection to ensure their safety. This support and protection, however, comes at a cost. The legal fees and costs for establishing a guardianship or conservatorship are often significant. Additionally, important legal and constitutional rights are stripped from the person subject to guardianship/conservatorship. Finally, the person subject to guardianship/conservatorship experiences a considerable loss of privacy because the court proceedings are public records. 

Guardianship often involves a considerable loss of privacy and legal rights. Nonetheless, the loss or limitation of such rights may be necessary to ensure a person is protected. RCW 11.130.001 illustrates the legislative intent that each guardianship and conservatorship should be carefully crafted to a person and situation:

It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through guardianship, conservatorship, emergency guardianship, emergency conservatorship, and other protective arrangements only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.

Therefore, guardianship and conservatorship should be specifically tailored to meet an individual's needs only to the extent necessary to protect them. A guardian often has authority to make medical decisions, social and living arrangements. A conservator often has the authority to make financial decisions and control assets.

Notably, creating a plan for incapacity may minimize the need for a guardianship and conservatorship.

Minor conservatorships are often established in circumstances where a minor child (under eighteen) becomes entitled to settlement funds or an inheritance. While that minor child is under eighteen, the law characterizes the child as incapacitated and therefore unable to receive, manage or protect such funds. Establishing and maintaining a conservatorship during that child’s minority is often a necessary step to the distribution and management of settlement and inheritance funds.

Guardianship/conservatorship can be a costly and burdensome process, not only to initiate but to administer. In order to begin guardianship/conservatorship proceedings, a petitioner (often a family member or concerned individual) petitions (“requests”) that the court commence a guardianship/conservatorship action and requests that a court visitor (investigator) be appointed. 

A Court Visitor is an independent party whose job is to conduct an investigation by meeting with the person needing care, reviewing medical records of the person needing care, investigating and identifying financial assets, and summarizing their findings in a report to the court and making a recommendation. 

A Court Visitor’s recommendation will often include:

1. whether the person for whom guardianship/conservatorship is sought is, in fact, incapacitated; 
2. whether there are less-restrictive means available to provide the necessary protection and support;
3. the scope of the guardianship/conservatorship (how it should be limited or specifically tailored in the least restrictive way to afford necessary protection); and 
4. who is an appropriate guardian/conservator, whether a “lay” (family) guardian/conservator or a certified professional fiduciary.

Upon a guardian/conservator being appointed, a guardian/conservator must report to the court annually, biennially, or triennially, and sometimes more frequently. 

Specifically, the guardian/conservator has a duty to report about:

1. the welfare of the person for whom they are acting, and his or her assets, and 
2. depending on the scope of the guardianship/conservatorship, to demonstrate to the court that the guardian/conservator is meeting the needs of and appropriately handling the affairs of the person for whom they are acting.

Guardians/Conservators are required to notify the court of any substantial changes to the welfare and property of the person for whom they are acting. 

If assets are more than $3,000.00, the conservator must obtain a bond or place those cash assets into blocked accounts. 

While a guardian or conservator may exercise some authority without specific court authority, other activities such as gifting or selling property typically requires notice to all interested parties and a court order.