Washington Probate Instructions

Decedent's Beneficiaries Under His/Her Will

This seems so obvious and innocuous.  If in his/her Will, Decedent says "I give my car to my best friend, Jim," shouldn't Jim get the car upon Decedent's death?  And the answer is: "Yes, maybe ...":

• Ownership.  First of all, Decedent cannot give what Decedent does not own, so:
   

  • Did Decedent still own the car at his/her death?  For example, after making the Will, Decedent might have sold the car, in which case the gift is "adeemed" and Jim gets nothing, at least not the car.
     

  • Is the car titled in the Decedent's name?
     

  • Is the title solely in Decedent's name?
     

  • Is the form of ownership as Decedent's separate property (eg, not in joint tenancy)?
     

  • Was Decedent married at death?  If so, then despite what the title says, the car will be presumed to be owned jointly by Decedent and his/her surviving spouse, each as to a one-half community interest --- and despite whatever the Will says, Decedent is able only to give away his/her one-half interest in the car.  RCW 26.16.030  In this situation and without more, Jim now becomes a joint owner of the car with Decedent's surviving spouse!  Assuming no other possible joint owner other than the surviving spouse, for Decedent to be able to give the car outright (ie, all of it), either:
     

    • The car would have to be proven to be Decedent's separate property (ie, his/her surviving spouse has no interest in the car), or
       

    • The surviving spouse would have to consent to the gift or transfer his/her one-half interest in the car to Decedent's estate.
       

• Omitted Heirs.  Next, are there what is known as "pretermitted or omitted heirs" --- namely, persons who:
   

  • Became Decedent's heirs after the Will's execution (because of marriage or birth),
     

  • Survived Decedent,
     

  • Were not named ("omitted") or provided for in the Will, and
     

  • Were not lawfully disinherited in the Will.
     

  These can be a surviving spouse married (RCW 11.12.095), but are most usually surviving children born (RCW 11.12.091), to Decedent after the Will's execution.  In general, despite the Will, an omitted heir is entitled to whatever he/she would have received had Decedent died without a Will (ie, "intestate").
   

• Solvent Estate.  Lastly as regards the estate, are other assets available to pay Decedent's debts and taxes?  If not, then the gift will "abate," the car will need to be sold to pay Decedent's liabilities, and Jim will get only what remains of the sale proceeds.  RCW 11.10.010
   

• Beneficiary Survivorship.  Finally, turning towards the beneficiary, has Jim survived Decedent and any additional survival period stated for the gift?  If not, then the gift "lapses," and neither Jim nor his estate, beneficiaries, or heirs are entitled to the gift.  RCW 11.12.120

So, for example, if the car hasn't been sold and is titled only in Decedent's name and as his/her separate property, and if Decedent is not married at death, has named all of his/her surviving children in the Will, and has sufficient other assets to pay for his debts and taxes, then if Jim is still around after all this, he will likely get the car after all.

©