Washington estate Planning Guide

Did you know estate planning laws aren’t the same everywhere? You probably think mainly about the federal government’s role when it comes to estate planning – specifically, the estate tax. But most of the rules that dictate what happens to your money and property when you’re gone are at the state level.

Washington, like other states, has its own nuances when it comes to estate planning. Most importantly, Washington has the highest estate tax rates in the country, with a top tax rate of 35%.

So, you can see how critical it is to put your estate planning in the context of the state’s laws where you live. Once you’ve learned why it’s important to have an estate plan, here’s what to consider more specifically when estate planning in Washington.

HOW WASHINGTON ESTATE LAWS AFFECT YOUR PLANNING STRATEGY

WASHINGTON STATE ESTATE TAX

Most people know about the estate tax at the federal level, which applies to very large estates. But some states also have their own estate tax (which is assessed against the value of the estate and removed before inheritors receive anything) or an inheritance tax (which is assessed against the inheritance after it’s received). One state even has both.

Unfortunately, Washington is one of the states with an estate tax. Even worse for Washingtonians, the tax rates are exceptionally high. Estates that are worth $3 million or more are subject to the Washington estate tax (as of July 1, 2025). The Washington estate tax rate is between 10% and 35%.

For the purposes of federal estate tax, a married couple effectively has double the individual exemption, because any unused exemption from the first spouse to die can be transferred to the surviving spouse in addition to their own exemption, known as “portability.” This isn’t the case for state tax in Washington, which doesn’t recognize portability.

While the estate tax landscape in Washington is challenging, there are strategies that can mitigate estate taxes.  For example, a married couple can potentially shelter up to $6 million using an exemption trust, also known as a bypass trust or a credit shelter trust. In this scenario, upon the first spouse’s death, up to $3 million of assets are placed in the irrevocable trust for the benefit of the surviving spouse. The surviving spouse has access to the funds and can even be the trustee, but he or she does not have ownership of that money. And because the surviving spouse is not the owner of the trust assets, the assets of the exemption trust are not includable in the estate of the surviving spouse for estate tax purposes. When the surviving spouse dies, the trust terminates and the assets are distributed to the beneficiaries free of estate taxes, and the surviving spouse has her own $3 million exemption.

WASHINGTON IS A COMMUNITY PROPERTY STATE

Washington is one of a handful of states that consider almost all assets and debt acquired during marriage to be jointly owned by both spouses. And while this is often relevant in divorce proceedings, there are also estate planning implications. 

All community property assets – the portion attributed to the deceased spouse as well as the portion attributed to the survivor – will generally receive a cost basis adjustment at death. This means that the cost basis of the assets will be “reset” to the value as of the deceased spouse’s date of death, potentially lowering the surviving spouse’s capital gains taxes. This “step-up” can be especially meaningful for the surviving spouse.

For example, say the couple owns stock that was purchased for $10,000, but it’s now worth $50,000. They would owe taxes on the $40,000 gain when the stock is sold. However, if one spouse dies, the basis is stepped up to $50,000, and only any future realized gains will be taxable for the surviving spouse.

Assets received via a gift or inheritance are not considered community property, nor are assets that were acquired prior to the marriage. However, spouses can enter into a formal agreement to treat separate property as community property.

Registered domestic partners are treated the same as married couples when it comes to community property, but note that at the federal level, the step up in basis doesn’t apply to domestic partners. Washington courts have also recognized community property rights for couples in a “committed intimate relationship” even if not married or in a registered domestic partnership.

WASHINGTON “SUPER WILL”

In Washington, your Last Will and Testament might take precedence over beneficiary designations on certain kinds of non-probate assets.

Here’s an example: You designate your sister as the beneficiary on your checking account. You later write a Will that specifically directs this account to your son. The Will – sometimes called a super will or superwill – overrides the recorded beneficiary designation and your sister will not receive the assets in the checking account.

That said, super wills can’t change beneficiary designations on some kinds of assets, including retirement accounts and life insurance policies.

Designations in a super will can only override beneficiary designations if the Will was created or updated after the beneficiary designation was signed.

KEY WASHINGTON ESTATE PLANNING DOCUMENTS

LAST WILL AND TESTAMENT

When people consider their estate planning, they often first think about the Last Will and Testament. This is a legal document that allows you to name a guardian for your minor children, describe how your assets are to be distributed at your passing and name the person (called the “personal representative” in Washington) who is responsible for administering your estate in accordance with the terms of your Will.

In the absence of a Will, you will be considered to have died “intestate” and the laws of the state where you reside will determine who inherits your assets.

In Washington, a valid Will must generally be:

• In writing
• Made by a competent person who is at least 18 years of age (or an emancipated minor)
• Signed in the presence of at least two witnesses, all of whom must also sign in the presence of the testator and each other

Also note these aspects of Washington Wills:

• If you have only two witnesses and at least one of them is a beneficiary under the Will (an “interested witness”), Washington law presumes that interested witness procured the inheritance by fraud or duress. To avoid this, you may want to consider having two witnesses who are not named in your Will and are not immediate family members.
• If you have an older Will that was executed prior to your marriage (or domestic partnership), your new spouse or domestic partner might be deemed to be a beneficiary, regardless of the terms of the Will. 
• If you neglect to remove an ex-spouse or domestic partner from your Will, Washington law treats your former partner as having predeceased you. 

Probate is the legal process to validate a Last Will and Testament following an individual’s death and the formal appointment of the personal representative.

The probate process generally is not a process that takes a tremendous amount of time, but it depends on the complexity of the situation and estate. In lieu of a probate petition, Washington offers a small estates affidavit for certain estates that value $100,000 or less. 

REVOCABLE LIVING TRUST

A revocable living trust (sometimes referred to as simply a “revocable trust” or a “living trust”) is an estate planning document that serves to both manage your assets during your lifetime and act as a testamentary substitute when you pass away. This document is called a revocable trust because you have the right to change its terms or even revoke the trust altogether – just like any other estate planning document. It is only at your passing that the trust becomes unamendable or irrevocable.

At your passing, your revocable living trust will work in tandem with your Last Will and Testament to effectuate your wealth transfer goals.

One of the benefits of a revocable trust is that assets held inside the trust prior to your passing are considered a non-probate asset, meaning that a personal representative does not need to be appointed by a probate court before your fiduciary has access to cash and other assets within your revocable living trust.

Revocable living trusts are not as common in Washington as they are in other parts of the country.

POWER OF ATTORNEY

With a power of attorney, you give one or more loved ones or trusted individuals the right to act on your behalf while you are alive. This allows them to manage your investment and bank accounts, pay your bills, file an income tax return and even cancel a subscription service. This is an immense responsibility, so the person you choose should be someone you fully trust.

In the absence of a power of attorney, no one (including spouses) has the right to make financial and other non-health care decisions on your behalf if you were to become incapacitated.

A general power of attorney is effective as soon as it’s fully executed. Some people prefer a “springing” power of attorney that only becomes effective under certain conditions (most commonly, upon a physician’s certification of incapacitation).

HEALTH CARE POWER OF ATTORNEY AND HIPAA RELEASE

What if you suffered a severe injury or illness and cannot make health care decisions for yourself, even if just for a temporary period of time? Who would you like to make important decisions for you?

In Washington, you can designate a health care agent to make medical decisions on your behalf if you’re not able to give informed consent to the medical provider or hospital staff yourself. To designate a health care agent, you’ll need to sign and date a health care power of attorney, and have it either:

• Acknowledged by a notary or someone authorized by law to take acknowledgments, or
• Signed by two witnesses in your presence. They can’t be related to you by blood or marriage (or domestic partnership) or be care providers in your home, adult family home or long-term care facility.

In Washington, your health care agent can’t automatically make some kinds of mental health care decisions for you. If you want your agent (the same or a different agent) to be able to make any mental health decisions for you, you also need a separate mental health advance directive that instructs how you want decisions made and when the directive should be effective.

It is also very important that your health care power of attorney includes a HIPAA authorization, allowing your health care agent to receive your health care information. Health care information includes knowing whether you are in an emergency room or other health care facility.

For individuals without a health care power of attorney, Washington law dictates who will make medical decisions on that person’s behalf. That’s why all adults 18 and older need a health care directive.

ADVANCE DIRECTIVE

An advance directive for healthcare (which is called a living will in some other states) is another type of health care directive that allows you to leave instructions for your end-of-life care if you’re no longer able to communicate your wishes. Among other things, you can direct health care providers to withhold artificial life-prolonging measures (while still providing pain management or other comfort care) if your physicians determine that there is no reasonable chance for recovery.

In Washington, you must either:

• Sign the directive and acknowledge it in front of a notary or other person authorized by law to take acknowledgements, or
• Sign the directive in the presence of two witnesses who are unrelated to you (by blood or marriage), who are not entitled to any part of your estate, and who are not the attending physician or employee of the attending physician or health care facility.

WASHINGTON ESTATE PLANNING CHECKLIST

As you set up your estate plan, make sure you’ve completed these steps:

• Inventory your assets, including financial accounts, real estate, personal property and digital assets. Think about how you want to divide them up.
• Confirm the beneficiary designations you have on file for accounts and policies that allow them.
• Work with an estate attorney familiar with Washington law to make sure your plan is complete and aligned with your wishes and that your heirs are protected from Washington estate tax as much as possible.
• Work with a financial advisor to integrate your plan with the other components of your financial life, including tax strategies.
• Review your plan every 2–3 years or after you’ve experienced a life event.

AVOIDING COMMON MISTAKES IN WASHINGTON ESTATE PLANNING

NOT PLANNING FOR ESTATE TAX

By far, the biggest mistake if you have a large estate and live in Washington is not planning for the estate tax. This tax can be up to 35% of your estate, and that’s on top of the federal estate tax if it applies.

Portability also doesn't exist in Washington, meaning couples don’t automatically have a way to double their exemption.

That said, there are special strategies you can use to prepare. One common strategy Washingtonians consider is gifting assets while they’re alive in order to reduce their estate. While this can be valuable from an estate tax perspective, keep in mind that gifted assets can come with large built-in capital gains that the recipient may have to pay taxes on when they sell the asset later. If the assets were given as part of the inheritance after you die instead, the recipient would receive a step-up in basis, wiping away any existing capital gains.

FAILING TO TITLE NON-RETIREMENT ASSETS INTO THE REVOCABLE LIVING TRUST

If you set up a revocable living trust, it’s important to ensure that your property is re-titled in the name of the revocable living trust, or it will lose its post-mortem efficiency.

Future property should be titled in the revocable living trust’s name as well, and you need to have a “pour-over will” that directs your property into the trust at the time of your death, just to be safe.

SUPERWILL CONFLICTS

As we explained, super wills can override previous beneficiary designations. While the intent is to simplify estate planning, it can do the opposite. Having inconsistent direction in your estate planning documents and designations can add stress, confusion and conflict for your heirs.

OVERLOOKING DIGITAL ASSETS

We’d be remiss if we didn’t include digital assets in our estate planning guide as we live in such a technology-driven world. Between smartphones and the cloud, we practically have everything we need at our fingertips. Many people don’t realize that there’s more to digital assets than just online banking and retirement accounts. They can also include your social media and email accounts, and anything with a username and password.

It is important to designate individuals that can access these accounts upon your passing. If possible, also provide current login information and any PINs or answers to security questions. While these are good tools for cybersecurity, they become a hindrance to those who actually need to access your accounts.

FAILING TO NAME SUCCESSORS

The personal representative, guardian for minor children, powers of attorney, trustees and health care agents you name could die or otherwise be unable or unwilling to act in these capacities in the future. By naming one or more successors when setting them up, you can prepare against that possibility.

WHY WORK WITH A FINANCIAL ADVISOR ON YOUR WASHINGTON ESTATE PLAN

An estate plan is an important part of your overall financial picture, but it’s just one of many pieces. A financial advisor who’s familiar with Washington rules can coordinate with your estate attorney, help integrate retirement and tax planning into your estate plan, and make sure your full picture is working together.

FREQUENTLY ASKED QUESTIONS ABOUT WASHINGTON ESTATE PLANNING

WHAT HAPPENS IF I DIE WITHOUT A WILL IN WASHINGTON?

In the absence of a Will, you’ll be considered to have died “intestate” and Washington law will determine who inherits your assets. If you have specific named beneficiaries on accounts – for example, 401ks or life insurance policies – those will pass to the people you named; they won’t go through the process below.

1. If you have a surviving spouse or registered domestic partner, all community property will go to them. They will also receive at least half of any individually owned assets, splitting them with any of your living children or parents.
2. If you don’t have a surviving spouse or registered domestic partner, assets will pass to surviving children and the children of a deceased child (your grandchildren)  
3. If you had no spouse or descendants, your parents would inherit your estate.
4. If none of these apply, your siblings would inherit your estate, with full siblings receiving more than half siblings.
5. If there are no family members who fall into these categories, your assets pass down your family tree. 

DO I NEED A REVOCABLE LIVING TRUST TO AVOID PROBATE IN WASHINGTON?

A revocable living trust can help your estate avoid probate. But all non-retirement assets must be titled in the name of the revocable living trust during your lifetime. Consider working with an estate planning attorney to ensure you’ve set up everything correctly.

Without a revocable living trust, your personal representative has no access to cash and no authority to act without a probate proceeding.  There are a few exceptions:  assets owned jointly with a right of survivorship pass to the surviving owner by operation of law and assets with beneficiary designations (such as life insurance and retirement accounts), are distributed to the named beneficiaries outside of the probate process.

IS THERE AN ESTATE OR INHERITANCE TAX IN WASHINGTON?

Yes, Washington has an estate tax. It applies to estates in excess of $3 million (as of July 2025) that do not benefit a surviving spouse or qualified charity, and the tax rate ranges from 10% to 35% of the estate’s taxable amount – the highest in the country. This tax is in addition to the federal estate tax (if applicable), and it makes tax planning critical for those with large estates.

Washington does not impose a separate inheritance tax.

WHAT HAPPENS IF I MOVE OUT OF STATE?

What happens to your estate is determined by the state law where you live. If you move out of Washington, you should consult an estate planning attorney in your new location to make sure your plan is still valid and complete, especially if you move to a state without community property laws.

GETTING STARTED WITH YOUR WASHINGTON ESTATE PLAN

Estate planning in Washington involves understanding state-specific laws and regulations that can impact how your assets are managed and distributed. Unlike some states, Washington has an exceptionally high estate tax, making tax planning critical. If you’re married, Washington’s community property laws can help lower the capital gains tax burden when one spouse passes away. Additionally, Washington’s recognition of “superwills” can complicate things, so it’s best to get ahead of it with your strategic estate planning.

It's essential to work with a financial advisor and estate planning attorney familiar with Washington laws to help ensure your estate plan is comprehensive and compliant. Planning now can give you peace of mind that your wishes will be followed and your loved ones will be taken care of.