When is a Nonprobate Asset Not a Nonprobate Asset? Part 3

Per E. Oscarsson, Edmonds Lawyer

In Part 1 of this series of articles on nonprobate assets (See here), I discussed the general definition of nonprobate assets under Washington’s probate and trust law. In Part 2 of this series (See here), I discussed the definition of nonprobate assets in the context of the dissolution or invalidation of a marriage or state registered domestic partnership or the termination of a state registered domestic partnership. In this concluding Part 3 of this series, I discuss the definition of nonprobate assets in the context of the Washington “super will” statute.

The general rule is that the disposition of nonprobate assets is not governed by a will. However, RCW 11.11, sometimes referred to as Washington’s “super will” statute, allows for the disposition by will of certain nonprobate assets. Although there are other conditions to application of the statute, they do not directly affect the portion of the statute that is the subject of this blog and will not be discussed here. The first requirement is that the will can only deal with certain nonprobate assets the beneficiaries of which were designated before the date of the will. The will cannot deal with the disposition of a nonprobate asset if the beneficiary of that asset is not designated until after the date of the will. For example, assume a payable on death bank account is established on January 1, 2022 and one or more beneficiaries are designated in the paperwork establishing the account. On February 1, 2022, the owner of that account signs a will that bequeaths that account to someone else. Assuming all other conditions for application of the super will statute have been met, such a bequest would be valid under the statute. Now assume the reverse as to timing of these events; that is, the person makes a will on January 1, 2022 that includes language that would be sufficient to transfer nonprobate assets to one or more beneficiaries. On February 1, 2022, the maker of the will establishes a payable on death bank account and names one or more beneficiaries on the account that are not the beneficiaries named in the will to receive nonprobate assets. The bequest in the will would not prevail over the beneficiary designation made in the paperwork establishing the account.

 The super will statute starts with the general definition of nonprobate assets discussed in Part 1 of this series, but then excludes the following from the definition:

  1. A right or interest in real estate passing under a joint tenancy with right of survivorship;
  2. A deed or conveyance for which possession has been postponed until the death of the owner;
  3. A transfer on death deed;
  4. A right or interest passing under a community property agreement; and
  5. An individual retirement account or bond.

Note that, under item 1 in this list, only joint tenancies with right of survivorship in real estate would be excluded from the definition; joint tenancies in other types of assets would not be excluded and could be the subject of a super will provision.

When you are doing your estate planning, it is important to keep in mind which assets you have that may constitute nonprobate assets, how they are owned, and how the distribution of those assets upon your death fits into your overall estate plan. It may be appropriate to leave your nonprobate asset beneficiary designations as they are in the paperwork that established the asset or it may be appropriate to include one or more super will provisions in your will to address the disposition of those assets upon your death.    

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.

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