Using Community Property Agreements to Avoid Probate
Probate is a court-supervised legal process intended to ensure that a decedent’s estate is protected and distributed to the lawful creditors and beneficiaries. However, many individuals seek to avoid probate, wishing to spare their survivors the expense and delay often associated with the process. One effective strategy to avoid probate in Washington is signing a community property agreement.
Washington is a community property state, which means that all property acquired during the marriage is considered half-owned by each. But that does not mean a deceased spouse’s share goes to the survivor, since children and others have inheritance rights by law. By using a community property agreement, married couples and registered domestic partners can provide that when the first spouse or partner dies, all of his or her property automatically goes to the surviving partner or spouse.
To create a community property agreement, you and your partner or spouse must sign it in the presence of a notary public. You are able to update or withdraw from your agreement at any point as long as you and your partner or spouse are both alive.
However, a community property agreement has certain drawbacks, among them:
- It does not avoid probate for the surviving partner or spouse.
- It is ineffective if both partners die at the same time.
- It does not allow for gifts to children.
- Out-of-state real estate may still have to go through probate.
- It remains in force if the couple separates.
Also, caution needs to be exercised when adding special provisions to your agreement — for example, if you want it to cover some property but not all, or if you want the agreement to terminate if you separate.
Keep in mind that a community property agreement shouldn’t replace important estate-planning documents like a living will, health care power of attorney or durable power of attorney. These documents can help ensure your wishes regarding medical treatment and personal finances will be honored in the event you become incapacitated.
If you are interested in creating a community property agreement between you and your spouse or domestic partner, we invite you to reach out to the legal team at Bottimore & Associates, P.L.L.C. Our lawyers can sit down with you and your partner to learn more about your unique situation and work to develop an agreement that suits your needs. Get in touch with our Tacoma office today to schedule a consultation by calling 253-272-5653 or contacting us online.