Washington’s SuperWill Provision – Controlling Non-Probate Assets in Your Will

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Washington’s SuperWill Provision – Controlling Non-Probate Assets in Your Will

In 1998, Washington became the first state to allow for the testamentary disposition of specified nonprobate assets. We refer to such statutes as “Superwill” provisions because they enhance an individual’s ability to dispose of nonprobate property without subjecting it to the probate process.

1-Superwill – General Compliance

Community property rights trump Superwill actions, meaning a testator does not have the right, in a will, to change the beneficiary of a nonprobate asset property that would pass to the testator’s spouse under community property laws. [RCW § 11.11.020(1)] Rather than requiring the testator to follow the established procedures for changing the terms of a will substitute, the Superwill statute permits a testator to make those changes in his will. Thus, a testator must comply with both Washington’s Statute of Wills and the Superwill statutes for a Superwill provision to take effect.

2- Non-Probate Assets you can control in your will

A will does not normally control this class of assets. However, referencing Washington’s Superwill provision in a will enables a testator to alter the beneficiary designation of a limited class of nonprobate assets, including: • Joint bank accounts with right of survivorship; • Payable on death or trust bank accounts; • Transfer on death securities or security accounts; • Trusts of which the person is grantor and that become effective or irrevocable only upon the person’s death, and; • Notes or other contracts the payment or performance of which is affected by the death of the person. [RCW §11.11.010.(7)(a) incorporating RCW §11.02.005(15)]

3-Non-Probate Assets you can’t control in your will

Even if you quote the SuperWill Statute in your will, the legislature specifically excluded several nonprobate assets from the Superwill provision: • A right or interest in real property passing under a joint tenancy with right of survivorship; • A deed or conveyance for which possession has been postponed until the death of the owner; • A right or interest passing under a community property agreement; and • An individual retirement account or bond. [RCW §11.11.010.(7)(a)]

4-Other Interests that Can NOT Be transfered via “Superwill”

The following are also not included in the Superwill statutes because Washington does not consider these items as nonprobate assets: • A payable-on-death provision of a life insurance policy, annuity, or other similar contract, or of an employee benefit plan; A right or interest passing by descent and distribution [RCW chapter 11.04] • A right or interest if, before death, the person has irrevocably transferred the right or interest, the person has waived the power to transfer it or, in the case of contractual arrangement, the person has waived the unilateral right to rescind or modify the arrangement; or • A right or interest held by the person solely in a fiduciary capacity. [RCW §11.02.005(15)]

5-Avoiding Legal Hassles

To avoid legal battles over implementation of a provision changing beneficiaries of nonprobate assets, testators should ensure that their Superwill provision references only allowable assets for changes in beneficiaries and does so specifically mentioning the assets by name or category. Two Washington appellate decisions overturned lower court decisions and found that the testator did not meet the specific statutory requirements for invoking the Superwill provision.