[WSBAPT] Codicil, but no Will

[Joshua McKarcher]

Sounds like you got lucky to me! I think you have two options that are technical differences that don’t matter one whit to my mind.

Option 1: I’d probably just file the will as an exhibit to an intestacy petition accompanied by the sole heir’s disclaimer, stating that to avoid complexity of figuring out the codicil’s status and the missing will referred to, we are proceeding in intestacy because the result is the same. One neat package that tells the Court and any third parties the full story that ends with the same result either way . . .  Then all you need are Letters of Administration and non-intervention powers to go effectuate all of this and then file a declaration of completion and waiver from the grandchild. Voila!

I’m personally agnostic, frankly, on whether you decide it’s a partial testate and partial intestate estate, since you get the same result with “any of the above.”

But if the document really could stand on its own, I would just strip the document you’re calling (or maybe even titled) a ”codicil” down to whether it meets the definition of a “will” in the statute.

If so, great, then option 2 is to probate it and indicate the estate is also partially intestate, and “per the disclaimer filed contemporaneously,“ same result: grandchild gets it all.

Then you’d ask for Letters Testamentary instead. No third party will care — that I know of — and if you’re not doing anything wrong, what of it?

My point is that I know of no legal difference THAT MATTERS between the two variations above. You’re doing nothing wrong or sneaky. No tax weirdness unless MAYBE you have a taxable estate with a GST consideration; I suspect not.

In either scenario, you’ll alert the court and you’ll send notice to child and grandchild. If your facts are correct, who is going to contest anything?

Good luck! Best, Josh


Joshua D. McKarcher

McKarcher Law PLLC

537 6th Street

Clarkston, WA 99403

(509) 758-3345

(509) 758-3314 (fax)

josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>

www.mckarcherlaw.com<http://www.mckarcherlaw.com/>

________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Peter D. Haroldson <peter at torresharoldson.com>
Sent: Monday, October 31, 2022 12:05:45 PM
To: wsbapt at lists.wsbarppt.com <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Codicil, but no Will


Hello Colleagues:



I am handling an estate where the client has decedent’s validly executed codicil, but cannot find the decedent’s will that it alters, nor a copy of the will.



The main asset in the estate is a piece of real property that is disposed of by the codicil, devised to grandchild.



Involved parties are agreeable.  The decedent has one intestate heir (child) who would agree to the probate of the codicil, and would disclaim whatever residuary assets there are to grandchild (her only heir) who is also the beneficiary of the codicil.  Goal is to get everything to grandchild.



Can the codicil stand on its own without the will?  Would the property not disposed of by the codicil be disposed of under the laws of intestacy and thus require a disclaimer?



This sounds like some combination of a probate, disclaimer, and / or NJDRA.  Has anyone handled such a situation before and would share what they did?



Thanks,



Peter D. Haroldson

Torres & Haroldson, PLLC

PO BOX 530

Maple Valley, WA 98038

Email: peter at torresharoldson.com<mailto:peter at torresharoldson.com>

Facebook: fb.me/torresharoldson<https://fb.me/torresharoldson>

Phone: 425.458.3170



Our office is located at 22520 SE 218th Street, Maple Valley WA 98038.  Please send mail to PO BOX.



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