What Should I Expect During My Estate Planning Appointment?

Every family situation is different; however, all estate planning should start with a few basics. This is not overly complex and does not require significate preparation on your part. Your estate planning attorney will need to know the following:

1. Complete names of your immediate family. Dates of birth, addresses, and social security numbers are not necessary and frequently not requested.
2. Identification of your assets. Your attorney needs to know what assets you (and your spouse) currently own along with an approximate valuation. Valuation does not need to be precise, as your assets will change in value over time. An approximate estate valuation will allow your attorney to identify any possible estate tax issues to plan for. It also allows your attorney to help assure that your estate plan is reasonable for the assets that you have.
3. Your general goals for your estate plan. Generally speaking:
   1. Who do you wish to receive your assets and in what proportions?
   2. What concerns do you want to address and minimize to the extent possible?
   3. Who do you want to care for your minor children?
   4. Who do you want to handle the administration of your estate?
   5. Who do you want to hold Power of Attorney for you to make financial and medical decisions on your behalf?

With that information, your attorney can advise you on various options to address your goals. Your attorney will recommend the documents and structure that will best achieve your goals. An estate planning appointment is an interactive and collaborative process designed to guide you through the process of selecting the best plan that accomplishes your objectives. It should be a relaxed and pleasant conversation.

What are the most common estate planning documents?

Last Will and Testament

Most Washington estate plans can be addressed with a Will based estate plan. This document will identify your family, your chosen heirs, your designated persons to administer your estate, provide trusts for minor or other vulnerable beneficiaries, guardians for minor children, and disposition of your remains. Your attorney can guide you the details of all of these provisions.

Power of Attorney

This can be in the form of one or more documents identifying family members, friends, or professionals you wish to make decisions for you during your life. These decisions address management of your financial affairs, your personal affairs, and your health care. While these can be effective only on your incapacity, it is commonly recommended that you make the powers effective immediately to avoid delays associated with obtaining a medical determination of incapacity and confirmation that a particular entity accepts that determination. This is an important component to discuss with your attorney.

Health Care Directive

This is a fairly standard document that provides that you do not wish to be kept alive through artificial means if it will only prolong death. This document helps ensure that your wishes are followed without burdening your family with making this difficult decision in an already emotionally challenging time.

Community Property Agreement

This document provides clarity as to joint ownership of assets of married couples and provides for the nearly automatic transfer of assets to the surviving spouse. Washington is a Community Property state, which means that there are presumptions about assets of married couples, but those presumptions have exceptions. This document eliminates those exceptions and characterizes all assets not excluded from the terms of the document as community. A well-drafted Community Property Agreement ensures that the document only applies in the event of the death of a spouse and does not apply in the unfortunate event of a future dissolution of marriage or legal separation.

Living Trust

Most estate plans do not necessitate a Living Trust; however, in certain narrow circumstances this document will provide for the ownership, management, and ultimate distribution of some, or all, of your assets.

Do I need a trust?

The most accurate answer to the most commonly asked estate planning question is, “It depends, but most likely not.”

For most people in Washington, a will-based estate plan provides everything you need — without the cost and complexity of a trust. Washington’s probate process is relatively simple, efficient, and affordable, meaning that many of the commonly cited reasons for creating a living trust do not justify the added cost and complexity.

What Is a Will-Based Estate Plan?

A will-based estate plan typically includes:

• A Last Will and Testament, which will provide for the disposition of your assets to your designated heirs, along with contingent (secondary) heirs, designation of Personal Representative (and alternates), designation of guardian for your minor children, creation of testamentary trusts to protect minor, or otherwise vulnerable heirs, and disposition of your remains.
• A Durable Power of Attorney, which will designate who you wish to make decisions for you during your life. These decisions include financial, personal, and medical. You can divide financial powers from personal/medical decisions, or include all in one document.
• A Health Care Directive, which is a standard statutory form that indicates that you do not wish to be kept alive by artificial means if it will only prolong certain death.
• A Community Property Agreement, which provides clarity as to joint ownership of assets of married couples and provides for the nearly automatic transfer of assets to the surviving spouse.

Your Last Will and Testament governs how your assets are distributed through probate, which is the court-supervised process that validates your will and authorizes your personal representative to act on behalf of your estate. Your Will designates that your Personal Representative will serve without bond and without court intervention. This allows them to be appointed quickly and without a court hearing. It also authorizes them to administer the estate without further court involvement, provided that they must follow the provisions of your Will.

Probate in Washington: Simple and Affordable

Unlike states such as California, Washington’s probate system is:

• Streamlined – Washington allows nonintervention probate, where your personal representative can administer your estate with little or no court involvement.
• Cost-effective – Probate filing fees and legal costs are modest compared to other states.
• Efficient – Most estates close within months, not years. The delay in administering estates is related to the complexity of assets and the time necessary to liquidate the assets rather than the legal process.

Because probate in Washington is so manageable, many families find that avoiding it entirely isn’t worth the extra effort or expense of creating and maintaining a trust.

What Is a Trust-Based Estate Plan?

A trust-based estate plan is centered around a revocable living trust. You create the trust during your lifetime, transfer assets into it, and serve as your own trustee while you’re alive. Upon your death or incapacity, a successor trustee takes over and distributes assets according to your instructions — without probate.

Trusts are often used to:

• Avoid probate in states with expensive or complicated court systems
• Manage property in multiple states
• Protect privacy (trusts are private documents, while Wills are public once Probate is initiated)
• Manage assets for minors or individuals with special needs
• Provide long-term management for beneficiaries
• Ensure joint estate plans remain intact for blended families after the death of the first spouse.

What a Living Trust does not do:

1. Avoid time and effort in administering an estate. Successor trustees have roles and responsibilities similar to that of a Personal Representative
2. Avoid income or estate taxes. A typical Living Trust does not have income or estate tax benefits; in fact, they can have increased income tax consequences. Certain trusts can be used to avoid estate taxes, those trusts are often incorporated in a Will based estate plan. Those that are not so incorporated often come with added complication, such as a loss of control of assets.

For most Washington residents, a revocable living trust offers little additional benefit because of how friendly our probate laws are. Here’s why:

1. Cost savings. Preparation of a Living Trust not only involves the drafting of the trust, but also Power-Over Wills for any assets not transferred to the trust during life, Quit Claim Deeds for all real estate to be held by the trust, Powers of Attorney, and Health Care Directives. In addition to the cost of deed preparation, there are recording costs to complete such transfers that can quickly add up.
2. Simplicity. May parties with trusts, even those with trusts for many years, fail to ensure that newly acquired assets are owned by the trust. This results in trust administration as well as probate to completely distribute their assets.
3. Washington’s “nonintervention” probate process allows estates to be handled quickly and with minimal court involvement.
4. Many assets can already transfer without Probate via beneficiary designation and through the use of a valid Community Property Agreement.
5. Probate provides oversight and transparency in the event of conflict. A will-based estate allows for court oversight if disputes arise. With a well drafted Will based estate plan, disputes are rare. The administration is outlined by state statute, so there is clarity for the Personal Representative and the heirs as to what the process entails. Trusts rely on the trustee’s good faith and diligence and requires a more complex process to address concerns and failings on the part of the trustee.

When a Trust Still Makes Sense

Although unnecessary for many, a trust can be a beneficial option in certain cases:

• You own real estate in multiple states
• You want to keep your estate plan completely private
• You have minor children or special-needs beneficiaries
• You wish to control distributions over time
• You have a blended family and want to ensure the surviving spouse maintains the joint estate plan made during your joint life.

The Bottom Line: A Will Is Often Enough in Washington

Every family’s situation is different. Before deciding whether you need a trust, it’s wise to speak with an experienced estate planning lawyer who can evaluate your goals, assets, and family circumstances.