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Surviving Spouse Rights in Washington. Do I have to file a probate for my spouse?

  • By: Christopher Benson
  • Published: April 30, 2023

Surviving Spouse Rights in Washington. Do I have to file a probate for my spouse?

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The short answer is “Yes” unless the following applies:

  1. The Assets of the deceased are in a trust; or
  2. The Assets of the deceased are held as joint tenants with the right of survivorship (property merely held as community property doesn’t count as will be explained later); or
  3. The Assets have a payable on death contractual provision (such as a retirement plan or life insurance proceeds);or
  4. In the case of a husband and wife, the husband and wife have previously executed a formal Community Property Agreement; or
  5. In the case where the assets are less than $100,000 AND the deceased did not own an interest in ANY REAL ESTATE.

Here are a couple of other clues:

  1. If you have tried to take care of the deceased’s bank account (or other financial accounts) and the bank has told you that you need “Letters Testamentary;” then you must file a probate to obtain Letters Testamentary from the Court.
  2. If you have tried to sell or refinance real estate in which the deceased had a title interest and the lender, escrow company or title company has told you that\ you need “Letters Testamentary;” then you must file a probate to obtain Letters Testamentary from the Court.

There is a common misconception about what “Community Property” actually means. What community property means is that while you are alive and if you are married and if you acquire property during the course of the marriage, you each own 50% of the title of title to the property (both real and personal property). IF you want to do something with the property, you both have to agree. For instance, if you want to sell the real estate, both spouses have to agree to sell the community property. If one spouse says “yes” and one spouse says “no,” then the property cannot be sold because both spouses do not agree on what to do with the property that they own together.

Community Property DOES NOT MEAN that when one spouse dies that the other spouse automatically gets the other 50% title from the deceased spouse. The deceased spouse can theoretically leave their 50% share title to whomever they want (*this is not necessarily always absolute, but, you get the picture).

So, for a surviving spouse to acquire the deceased spouse’s 50% of the title, the surviving spouse typically has to file a probate and obtain authority from the Court to transfer title to the rightful heirs as set forth in the terms of a Will or if no Will, then via the Washington State Intestate Statute law. Also, the Will by itself does not automatically transfer title. The Will has to be probated with the Superior Court and a Court Order entered admitting the Will to probate and appointing a personal representative with authority to transfer title of property of the deceased person’s estate.

Now you can live anywhere and hire the best lawyer. We handle probate cases anywhere in Washington State.

We handle a lot of probate cases with client meetings by Zoom and we can FedEx documents to you.

You can call (253) 815-6940 to set up your free initial consultation. At the appointment, it is helpful if you bring with you the following items: 1. Certified Copy of Death Certificate; 2. A copy of the Last Will and Testament; 3. The names, addresses and telephone numbers of all children and/or beneficiaries named in the Will; 4. The addresses of any real estate owned by the deceased; 5. Any information concerning mortgage companies or other creditors of the deceased.

4 Reasons Why We Are Your Best Choice:
  1. Experience: Over the past 32 years, Mr. Benson has helped over 900 clients with their estate planning needs and over 300 Probate cases. Christopher A. Benson is rated as “10.0” by among all lawyers in the United States.We have worked hard for many years to achieve that level of excellence and we are very proud of our national rating.
  2. Great Customer Service: Our clients love working with us. Please look at our Customer Reviews page.
  3. The Initial Consultation With Mr. Benson Is FREE. Therefore, it costs you nothing to find out if you need to do a probate and what is involved in the process for your set of circumstances.
  4. Convenience: One of the convenient things about probate administration in Washington: A Washington Statute provides that a probate can be filed in any County Superior Court in the State of Washington. Therefore, it does not matter where you live, we can handle your Washington State probate needs.

We handle probate cases all over the State of Washington and we have the ability to file the probate in King County or Pierce County in order to save money for administration costs and make it more convenient.

Click this link to contact our firm.

For information about the ex parte probate department for King County, click this link.


Attorney Christopher A. Benson

Law Offices of Christopher A. Benson, PLLC

(253) 815-6940

email: [email protected]


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