Dying Without a Will: Does the State Really Get Your Property?

A surprising number of people, being understandably (and blissfully) unstudied in Washington’s probate laws, carry in their heads the vague notion that one of the risks of dying without a proper will is that the State then gets to gleefully step in and inherit one’s unprovided for property. Like many common misconceptions, there is a kernel of truth at its core. The State laying claim to one’s property in the absence of a valid will is a possibility under Washington law, but a very remote one.

A quick overview of Washington’s intestacy statute helps illustrate this point. Washington’s intestacy statute (codified under RCW 11.04) sets out rules for the distribution of one’s estate if there is no valid will (note that one who dies without a will is considered to have died “intestate” whereas one who dies with a will is said to have died “testate”). In effect, the Washington intestacy statute represents the “default” will that the state legislature has created to supply a will to anyone who does not create one for themselves. In fact, every state in the Union has supplied its residents with a default will through each individual state’s intestacy laws. The intention behind all of them is to reflect how the average person would presumably want his or her property to pass if they had executed a will.

In Washington, RCW 11.04.015 supplies the specifics: in the event that you die unmarried (or without a registered domestic partner) then all of your property goes to your children, if any. If no children then everything would go to your parents. If no surviving parents, then everything goes to the surviving descendants of your parents (that is, to any siblings or, if a sibling is no longer living, to that sibling’s offspring). If no surviving siblings nor offspring of deceased siblings, then one’s surviving grandparents inherit. Finally, if one has no surviving grandparents, then the final class of heirs are the descendants of one’s grandparents.

In the event that you die married (or in a registered domestic partnership), then your spouse inherits all of your community property. The exact division of any separate property depends whether you have other surviving heirs in addition to your spouse. If you die with children, then ½ of any separate property goes to your surviving spouse and the other half goes to your children. If you have no surviving children but do have surviving parents (or descendants of parents) then your surviving spouse gets ¾ of any separate property and your parents (or their surviving descendants) take the remaining ¼. Should there be no surviving children, parents, or descendants of parents, then your surviving spouse takes all of the separate property.

As can be seen, Washington’s intestacy statute traces the branches of one’s family tree in a logical progression, seeking to distribute property first to heirs of closest relation and then to heirs of increasingly distant relation. It ultimately casts a very wide net in its effort to find a qualifying heir. It is only in the very unlikely scenario that following the intestacy statute fails to turn up an eligible heir that the state itself can step in and inherit. In this rare scenario one’s property is said to “escheat” to the state. RCW 11.08.140 and .150 provide that anyone who dies without heirs and leaves behind property in Washington falls under the state’s “escheats statute” and title to their property vests in the state. Ultimately, while there are a host of reasons why executing a valid will (or implementing alternative forms of estate planning) is important, the state inheriting one’s property is a possible, but exaggerated, consequence of not doing so.