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WA-Probate > Probate Avoidance > Popular Misconceptions about Wills

 

 

L.  Popular Misconceptions about Wills

  1. Misconception #1: "I Can Avoid Probate by Having a Will" or its corollary "If I Have a Will, I'm Buying a Probate"

  2. Misconception #2: "I Can Reduce or Avoid Death Taxes By Making a Will" or its corollary "Death Taxes Don't Apply to People Who Have Wills" or its other corollary "Death Taxes Apply Only to People Who Have Wills"

 

Misconception #1: "I Can Avoid Probate by Having a Will" or its corollary "If I Have a Will, I'm Buying a Probate"    

 

Whether a probate will be needed will depend on a number of facts and situations, such as:

Bottom-line:  Whether a probate will be needed will be determined by a number of factors, which do not include whether or not you have a Will.  In summary:

You don't "avoid probate" by making a Will.  Similarly, you don't "buy a probate" by making a Will.

 

 

The primary death tax for a Washington resident is the federal estate tax, imposed on the value of property that a Decedent owns or controls at death --- how they pass to the survivors is immaterial (ie, whether by testacy, intestacy, Living Trust, Community Property Agreement, joint tenancy, etc.).

Misconception #2: "I Can Reduce or Avoid Death Taxes By Making a Will" or its corollary "Death Taxes Don't Apply to People Who Have Wills" or its other corollary "Death Taxes Apply Only to People Who Have Wills"    

 

Whether you and your estate will be liable for any death taxes will be determined under both federal and Washington law (see Handling Estate Tax Issues for further details).  Under both sets of law, as regards death taxes, there is no advantage or disadvantage to having, or not having, a Will.  Any death tax liability you may have will generally depend on the nature and value of your property at death, the nature of your interest in that property, and who gets what.  The particular method that you use to transfer your property to others, specifically, whether it is transferred with or without a Will, by joint tenancy, by Community Property Agreement, by trust, and so forth, does not matter for death tax purposes.

 

There is, however, a grain of truth to this misconception.  You can reduce or avoid death taxes with a Will --- not merely because you have a Will, but because of the way that you specify in your Will (or Living Trust) for your property to pass.  Some ways can reduce and even eliminate death taxes --- others can't.

 

Having a Will (or Living Trust) itself does NOT by itself have anything to do with death tax liability.

Death tax liability will be determined not by "Do you have a Will?"
or
 "Do you have a Living Trust?"
but, for example, by
"If you do have a Will (or Living Trust), what does it provide?"

 

 

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