Descendant’s Beneficiaries Under His/Her Will

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

  • Ownership.  First of all, Descendant cannot give what Descendant does not own, so:
    • Did Descendant still own the car at his/her death?  For example, after making the Will, Descendant 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 Descendant’s name?
    • Is the title solely in Descendant’s name?
    • Is the form of ownership as Descendant’s separate property (eg, not in joint tenancy)?
    • Was Descendant married at death?  If so, then despite what the title says, the car will be presumed to be owned jointly by Descendant and his/her surviving spouse, each as to a one-half community interest — and despite whatever the Will says, Descendant 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 Descendant’s surviving spouse!  Assuming no other possible joint owner other than the surviving spouse, for Descendant to be able to give the car outright (ie, all of it), either:
      • The car would have to be proven to be Descendant’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 Descendant’s estate.
  • Omitted Heirs.  Next, are there what is known as “pretermitted or omitted heirs” — namely, persons who:
    • Became Descendant’s heirs after the Will’s execution (because of marriage or birth),
    • Survived Descendant,
    • 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 Descendant after the Will’s execution.  In general, despite the Will, an omitted heir is entitled to whatever he/she would have received had Descendant died without a Will (ie, “intestate”).

  • Solvent Estate.  Lastly as regards the estate, are other assets available to pay Descendant’s debts and taxes?  If not, then the gift will “abate,” the car will need to be sold to pay Descendant’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 Descendant 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 Descendant’s name and as his/her separate property, and if Descendant 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.