Washington has a statute1 that permits a testator to make gifts of certain nonprobate assets in a will. A will that takes advantage of this statute is sometimes called a “super will” or a “superwill.” Typically, nonprobate assets are transferred upon a person’s death through an arrangement or written instrument other than a will.2
In order to give nonprobate assets through a super will, the testator must either specifically identify the nonprobate assets and designate beneficiaries for each asset or include a broader statement of a gift such as “all nonprobate assets” or “all of my payable on death accounts.” Absent this type of language, nonprobate assets will not pass under a will, nor will a general residuary gift (which purports to be a gift of “all the rest, residue, and remainder” of the testator’s estate) be effective for transferring a testator’s nonprobate assets.3
Although the statute authorizing super wills expressly states that the testator can use a broad statement of a gift (“all nonprobate assets”), note that this does not actually mean all nonprobate assets. The super wills statute refers to another statute,4 which excludes certain assets from the meaning of nonprobate assets for purposes of super wills. To be clear, the following nonprobate assets cannot be transferred via a super will:
- 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 (such as a life estate in real property);
- a transfer on death deed;
- a right or interest passing under a community property agreement; and
- an individual retirement account or bond.
The following nonprobate assets can be transferred via a super will:
- an inter vivos trust;
- jointly held property other than real property;
- joint, payable-on-death, and trust bank accounts;
- transfer-on-death securities and accounts; and
- a note or other contract the performance of which is affected by the death of a person.
If a person has already designated beneficiaries outside of a will for his or her nonprobate assets then later executes a super will naming different beneficiaries for the same nonprobate assets, the beneficiaries named in the super will will supersede the previously named beneficiaries. Similarly, any beneficiary designations of nonprobate assets made after a super will is executed that are inconsistent with gifts of nonprobate assets in the super will will supersede the designations in the super will.
There are many pitfalls to executing a super will, the most significant of which is the confusion created by the inconsistencies between beneficiary designations inside and outside the will. Such confusion could lead to a testator accidentally disinheriting someone he or she intends to be a beneficiary. The inconsistencies between the beneficiary designations inside and outside the will also create unwanted avenues for will contests among a person’s beneficiaries and heirs. One of the purposes of having an estate plan is to eliminate confusion about who will receive your assets after your death, but a super will is likely only to increase confusion. Because of this, the information on this website is not intended to be used to draft a super will.
If you are interested in executing a super will, you should consult an estate planning attorney.