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Surviving Spouse Rights In The State of Washington

  • By: Christopher Benson
  • Published: April 9, 2023

Surviving spouse rights in the State of Washington is a confusing topic for a lot of people. Property does not get “automatically” transferred to the surviving spouse. 60% of American citizens do not have an estate plan. Therefore, the vast majority of surviving spouses have to hire a lawyer and go through a formal probate in the State of Washington.  Here are answers to the most common questions.

Surviving spouse rights in Washington State

Community property Washington State death

Can you get a letter of testamentary without probate

Do i need a lawyer to get a letter of testamentary

Letter of testamentary Washington State

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We understand that dealing with the loss of a spouse is an incredibly difficult and emotional time. Amidst the grieving process, it can be overwhelming to navigate the legal requirements that come with the passing of a loved one. In the state of Washington, the probate process can be particularly complex, and it is essential to understand whether or not you need to file for probate after the death of your spouse.

The answers in this article may surprise you just like many of our clients. The reason is because people do not understand the probate process and they do not understand what community property really means.

Do you have to file a probate to handle real estate and bank accounts when a person dies?

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.


At The Law Offices of Christopher A. Benson, PLLC, we specialize in helping clients navigate the probate process in Washington, and we are here to provide guidance and support during this difficult time. In this article, we will answer the question: “Do I have to file for probate after my spouse’s death in Washington?” We will provide a comprehensive overview of the probate process in Washington, including when probate is necessary, how to file for probate, and what to expect during the probate process.

When is Probate Necessary in Washington?

Probate is a legal process that is used to transfer ownership of assets from a deceased individual to their beneficiaries. In Washington, probate is necessary in several different circumstances:

  • The deceased had assets that were solely in their name, and the total value of those assets exceeds $100,000.
  • The deceased owned real estate in their name, regardless of the value of that real estate.
  • The deceased owned assets in a living trust, but the trust was not fully funded at the time of their death.
  • The deceased had outstanding debts or unpaid taxes.

If any of these circumstances apply to your situation, you will need to file for probate in Washington.

Here is a helpful video concerning when you are required to file a probate in the State of Washington:


Here is a helpful video for your initial probate consultation with the Law Offices of Christopher A. Benson, PLLC.


How to File for Probate in Washington: Surviving Spouse Rights

Filing for probate in Washington can be a complex and time-consuming process, but our team at The Law Offices of Christopher A. Benson, PLLC is here to help guide you through every step of the way. The process generally involves the following steps:

** A BIG word of CAUTION: If you decide to start the probate process without a probate lawyer from the start of the case, then experienced probate lawyers (like our firm) USUALLY WILL NOT jump in after a case is filed when you get stuck in the court system. If you start a probate case with the court by yourself, then you are probably not going to find an experienced probate attorney willing to come in an try to figure out all the problems with the case. (Been there. Done that.) Probate is not a great place to make your first attempt to navigate the court system smoothly.

  1. File a Petition for Probate: The first step in the probate process is to file a petition with the court. This petition will ask the court to appoint a personal representative to handle the probate process.
  2. Notice to Creditors: Once the petition has been filed, a notice to creditors must be published in a local newspaper. This notice informs creditors that they have a certain amount of time to file a claim against the estate.
  3. Inventory and Appraisal: The personal representative is responsible for creating an inventory of all assets owned by the deceased and obtaining an appraisal of those assets.
  4. Pay Debts and Taxes: The personal representative is responsible for paying any outstanding debts or taxes owed by the deceased.
  5. Distribute Assets to Beneficiaries: Once all debts and taxes have been paid, the remaining assets can be distributed to the beneficiaries named in the will or according to Washington state law.

What to Expect During the Probate Process

The probate process in Washington can take anywhere from six months to several years, depending on the complexity of the estate and whether or not there are any disputes between beneficiaries. During the probate process, you can expect the following:

  • The personal representative will be responsible for managing the estate’s assets, paying debts and taxes, and distributing assets to beneficiaries.
  • Creditors may file claims against the estate, which will need to be paid out of the estate’s assets.
  • Beneficiaries may contest the will or the distribution of assets, which can prolong the probate process.

In summary, if you are unsure whether or not you need to file for probate after the death of your spouse in Washington, it is best to seek legal guidance. At The Law Offices of Christopher A. Benson, PLLC, we are here to provide expert legal support during this difficult time. Contact us today to schedule a consultation with one of our experienced attorneys.

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