Is your foreign will valid in Washington?

If you moved to Washington from out-of-state, there are some basic things that you should know about Washington law with regard to what becomes of your assets when you pass away, whether you already have a will or not.

If you have a will that you executed in a another state or in another country, it is called a foreign will, and it may be valid in Washington. Your foreign will must meet these minimum requirements to be valid. You may be fortunate to come from a state or country with the same minimum requirements and find that the requirements under Washington law have already been satisfied. Or there is another basis for your foreign will to be valid. If your foreign will was executed “in the mode prescribed by the law of the place where executed or of the testator’s domicile, either at the time of the will’s execution or at the time of the testator’s death,”¹ then your foreign will is valid in Washington.

If you determine that your foreign will is valid, be aware that there is the possibility that it may not do what you intend for it to do after your death because of differences between the laws of Washington and the laws of the state or country where you executed it. Though a court in Washington can look to the laws of the state or country where your will was executed to determine its validity, in most cases a Washington court will apply Washington law with regard to how the assets of your estate are distributed.

A prime example of this possibility is with respect to community property.² This means that in Washington, the testator cannot give gifts in his/her will that are part of his/her spouse’s one-half interest in community property. The testator cannot leave any of the spouse’s interest to someone else. So if the testator makes cash gifts in his/her will that exceed the value of the testator’s one-half interest in community property, then those gifts will not be fully funded as the testator intended. The same is true if the testator attempts to give away a house or parcel of land that the surviving spouse has a community property interest in. Most gifts of of quasi-community property are also likely to be affected.

If you do not have a will, or if your foreign will is not valid in Washington, then your estate will pass through intestacy. This means that your estate will be distributed to your heirs based solely on who survives you. This creates the possibility that a family member (or members) that you wanted nothing to do with in life winds up legally entitled to a portion of your estate after your death.

If applicable, you should also review other estate planning documents (durable power of attorney, durable power of attorney for health care, and a health care directive) that you executed elsewhere. Those documents may make specific references to the laws of the state or country where they were executed. Those laws and Washington law may differ with regard to what powers and what authority you can grant to the person or persons that you have appointed to act on your behalf.