What Do Heirs, Issue, and Personal Representative Mean in a Washington Will?

You are reading a parent's will, or a draft of your own, and it is full of words nobody uses at the kitchen table: "to my issue, by representation," "my heirs," "my personal representative." They look like filler, but each one decides who receives property or who is in charge.

Washington's probate code defines these terms in RCW 11.02.005. In short, "heirs" are the people who would inherit if there were no will, "issue" means all of a person's lineal descendants, and the "personal representative" is the person appointed to handle the estate, whether the will calls that person an executor or not.

One caution. RCW 11.02.005 says its definitions apply when the words are used in Title 11 RCW, unless the context requires otherwise. A will can define its own terms, and RCW 11.12.230 directs courts to have due regard to the true intent and meaning of the person who made the will. So the will's own definitions section is the first place to look. The meanings below are the ones the probate code itself uses.

Who Are My "Heirs"?

Heirs are not the people named in a will. RCW 11.02.005 says "heirs" denotes the persons, including the surviving spouse or surviving domestic partner, who are entitled under the intestate succession statutes to a decedent's property when the decedent dies without a will. Those statutes, mainly RCW 11.04.015, are explained in what happens if you die without a will.

That means a person can be an heir and receive nothing, and a person can receive everything without being an heir. If Nora, a widow, leaves her whole estate to her friend Carol, Carol is a beneficiary under the will, and Nora's son is still her heir. The word matters most when a will or trust makes a gift "to my heirs," because the gift then goes to whoever the intestacy statutes would pick.

What Does "Issue" Mean?

"Issue" means all the lineal descendants of an individual: children, grandchildren, great-grandchildren, and so on. It is broader than "children," and a gift "to my children" and a gift "to my issue" can produce different results when a child has died and left children of their own.

The definition answers two common questions. An adopted person is a lineal descendant of each adoptive parent, and of everyone the adoptive parent descends from, so adopted children and their children are issue. And a child conceived before a parent's death but born afterward counts as that parent's surviving issue.

The definition says nothing about stepchildren. A stepchild who was never adopted is not a lineal descendant, so a gift "to my issue" does not reach a stepchild. In a blended family, a person who wants a stepchild to share has to name that child or define the term to include them.

What Does "By Representation" Mean?

"Representation" is the method for dividing a gift when the people taking it are in different generations. Under RCW 11.02.005, first find the nearest generation that has someone entitled to share. Divide the estate into equal shares, one for each person in that generation who survived the decedent and one for each person in that generation who died first but left issue who survived. Each deceased person's share is then divided among that person's surviving issue.

Suppose Grace leaves her estate "to my issue, by representation." She had three children: Alan, Beth, and Carl. Beth died before Grace and left two children. Carl died before Grace and left no descendants. There are two shares, one for Alan and one for Beth's line. Alan takes one-half, and Beth's two children take one-quarter each. Carl's line receives no share.

Change the facts so that all three of Grace's children died before she did, and she is survived by Alan's one child and Beth's three children. The nearest generation with anyone entitled to share is now the grandchildren, so the estate is divided into four equal shares, one per grandchild.

Many wills and forms use the Latin phrase "per stirpes" for a similar idea. RCW 11.02.005 does not define that phrase. In the traditional sense that legal dictionaries and many courts give it, it divides the estate at the children's level even when all of the children have died, which on the second set of facts would give Alan's child one-half. Whether a particular will means the traditional method or the statutory one depends on its wording, so that language deserves a careful read.

Who Is the "Personal Representative"?

The personal representative is the person with legal authority to administer the estate. RCW 11.02.005 says the term includes an executor, an administrator, and a special administrator. The same section defines an executor as a personal representative appointed by will, and a special administrator as a personal representative appointed for limited purposes. An administrator is defined simply as a personal representative of a decedent's estate, and it is the word generally used when no will names the person.

So an older will that names an "executor" is naming a personal representative. What that person has to do is covered in the duties of a personal representative.

Three More Definitions Worth Knowing

"Surviving spouse" or "surviving domestic partner" does not include a person whose marriage or state registered domestic partnership with the decedent was terminated, dissolved, or invalidated, unless, through a later marriage or registration, the two were again married or partnered at the time of death. The definition adds that a decree of separation that does not end the status of spouses or domestic partners is not a dissolution for this purpose. Under this definition, a legally separated spouse is still a surviving spouse, and so is a spouse in a divorce that was filed but never finished.

"Net estate" is the decedent's real and personal property after setting aside homestead rights, exempt property, the family allowance, and enforceable claims against and debts of the decedent or the estate. When the intestacy statute divides the "net estate," it is dividing what is left after those items.

"Nonprobate asset" means a right or interest that passes at death under a written instrument or arrangement other than the will. The definition lists examples: joint tenancy with right of survivorship, a joint bank account with right of survivorship, a transfer on death deed, a payable on death or trust bank account, a trust that becomes effective or irrevocable only at death, a community property agreement, and an individual retirement account. It then excludes, among other things, a payable on death provision of a life insurance policy, an annuity, or an employee benefit plan. Those assets still pass outside the will, but they are not "nonprobate assets" as this section uses the term. The section also notes that RCW 11.07.010 and RCW 11.11.010 use their own definitions for the rules on former spouses and on wills that try to redirect nonprobate assets. The practical side is covered in what assets go through probate.

Read the Words Before You Rely on Them

A will that says "heirs" where the writer meant "children," or "issue" where the writer meant to include a stepchild, may be carried out in a way the writer never intended. The Law Office of Chad Foster drafts wills that define their terms and helps families read the ones already signed. Call 425.785.8679 to talk with a Snohomish County estate planning attorney about what the words in a will mean for your family.