§12.6 Testamentary Disposition of Nonprobate Assets

• Jurisdiction: Washington

§12.6 TESTAMENTARY DISPOSITION OF NONPROBATE ASSETS

Under Chapter 11.11 RCW, it is possible for a testator to override beneficiary designations on nonprobate assets by providing for disposition to different beneficiaries in the will, as discussed below.

(1) Operation of the statute

The operative provisions of Washington's "super will" statute are found in RCW 11.11.020, which generally provides that a provision in a will designating the beneficiary of a nonprobate asset specifically referred to in the will controls over any asset beneficiary designation existing at the time the will is signed. Thus, the statute renders effective a provision in a will that reads along the lines of the following: "I intend my bank account on which Child 1 is the payable-on-death beneficiary to pass instead to Child 2."

The statute will probably be most useful in a deathbed situation when the testator wishes to change the disposition of a variety of nonprobate assets and may not have the time to do so directly. The court has liberally construed RCW 11.11.003 and .005 to "facilitate the power of testators to control the disposition of assets passing outside their wills." Manary v. Anderson, 176 Wn.2d 342, 357, 292 P.3d 96 (2013). To this end, the court held that an owner who bequeathed his interest in a nonprobate asset to a testamentary beneficiary, by specifically referring to the nonprobate asset, complied with the statute, even though the testator did not name the instrument under which the nonprobate asset was supposed to pass. Manary, 176 Wn.2d at 346.

Practice Tip: For deathbed planning even though the Manary court allowed this ambiguous naming to satisfy the statute, attorneys should err on the side of more specificity rather than less.

RCW 11.11.020(4) provides that the statute does not apply to a beneficiary designation made after the date of the will, nor does it apply if the later beneficiary designation is subsequently revoked. However, the statute does not govern the form used to redesignate a beneficiary of a nonprobate asset for purposes of RCW 11.11.020(4). In re Estate of Cordero, 127 Wn.App. 783, 789, 113 P.3d 16 (2005).

RCW 11.11.020(2) and (3) make it clear that a general residuary provision in a will, or a will that generally purports to dispose of "all my property," is not sufficiently specific to invoke the provisions of the statute, but provision for "all my nonprobate assets" or "all of my

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