Disposing of Nonprobate Assets by Will

Per E. Oscarsson, Edmonds Lawyer

The general rule is that the disposition of nonprobate assets is not governed by a will. The disposition is usually governed by the form of ownership, such as joint tenancy with right of survivorship, or a beneficiary designation in the document creating the asset, such as a transfer on death security account with a beneficiary named in the paperwork establishing the account.

However, RCW Title 11, Chapter 11, sometimes referred to as Washington’s “super will” statute, allows for the disposition by will of certain nonprobate assets. Subject to community property rights, upon the death of an owner of the asset, the owner’s interest in any nonprobate asset specifically referred to in the owner’s will belongs to the beneficiary named in the will to receive that asset, even though a beneficiary designated before the date of the will may have rights to that asset. There are some important aspects to that statement. First, not all assets that are generally defined as “nonprobate” assets are considered nonprobate assets for purposes of the statute. In a previous post titled “When is a Nonprobate Asset Not a Nonprobate Asset? Part 3,” I discussed the nonprobate assets that are not considered nonprobate assets for purposes of the statute. Second, the beneficiary of the asset not named in the will must have been designated as the beneficiary of that asset before the date of the will; if the owner of the asset designates a beneficiary of the nonprobate asset after the date of the will, the disposition provision in the will would not govern the disposition of that asset, even if the subsequent beneficiary designation is later revoked.

The language used in the will to dispose of a nonprobate asset is also important. A will provision that disposes of the owner’s interest in “all nonprobate assets,” or of all of a category of nonprobate asset under RCW 11.11.010(7), such as “all of my transfer on death security accounts” or similar language, would be a disposition of the nonprobate asset for which a beneficiary was designated before the date of the will.  However, a will provision such as “I leave all of the residue of my estate to person A” or a general disposition of all of the owner’s property, would not allow the beneficiary designated in the will to receive nonprobate assets of the owner.

If a nonprobate asset that is the appropriate subject of a “super will” provision was designated to a beneficiary before the date of the will designating another beneficiary of that asset, and the non-will designated beneficiary has received the asset, the will designated beneficiary and the personal representative of the owner’s estate on behalf of the will designated beneficiary may petition the superior court with jurisdiction over the owner’s estate for an order declaring that the will designated beneficiary is entitled to the asset.

Often, nonprobate assets are created for a specific reason, such as concerns about the probate process, concerns about the ability of the recipient to handle or invest the nonprobate asset, or a variety of other reasons. It is important to keep those reasons in mind when considering how such an asset fits into your overall estate plan and goals and whether to include a “super will” provision in your will that could significantly impact your plan and goals.

If you need assistance with your estate planning, contact Per Oscarsson or one of the other attorneys in Beresford Booth’s Estate Planning and Probate Group at  info@beresfordlaw.com or by phone at (425) 776-4100.

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