Navigating Probate in Washington State: A Guide for the Surviving Spouse

As a surviving spouse in Washington state, you may be wondering if you need to start a probate. This question frequently arises during the difficult times following the loss of one’s spouse. This article provides some easy-to-understand information about the probate process in Washington State, and the obligations of a surviving spouse.

What is Probate?

To begin with, let’s define what probate is. Probate is a formal process that occurs within the court system, through which a deceased person’s estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid off. It’s a system that ensures fairness and finality in the distribution of assets.

When is Probate Necessary in Washington State?

Probate is not legally required after death in Washington state. However, probate is generally necessary in Washington when the deceased person (the decedent) either owned real property at the time of death or the person owned personal property (typically in a bank account or brokerage account) worth more than $100,000. Unless an exception exists as described below, probate is required in order to legally transfer title to these assets to the persons or charities entitled to receive them (the beneficiaries).

Exceptions to Probate

When discussing the need for probate, there are two different kinds of assets to consider: probate assets and non-probate assets.

Probate Assets

Probate assets are assets that are held in the decedent’s name at death are considered to be part of the decedent’s estate and will either pass to the decedent’s beneficiaries named in the decedent’s Will, or will pass to the decedent’s heirs determined under the laws of intestate succession.

Non-Probate Assets

These are all of decedent’s other assets, including:

• Assets held in joint ownership form (such as cash in a bank account held as joint tenancy with right of survivorship);
• Assets held in a trust (such as a Revocable Living Trust);
• Assets held under some forms of community property agreement between the decedent and his or her surviving spouse (not all community property agreements will qualify);
• Assets which are held in an account or are of a type that have a payable-on-death or transferable-on-death designation, such as an IRA account, a pension plan, or a life insurance policy.

If the probate assets include either real property or personal property with a net value of $100,000 or more, then probate will be required (unless an exception applies for real property, as described in the “Does a Surviving Spouse in Washington State Need to Start a Probate” section below).

If a probate is required, then all of the probate assets will be administered in the probate as part of the decedent’s estate. The non-probate assets will not be administered as part of the probate estate,  and will instead pass directly to the payable-on-death or transferable-on-death beneficiaries. However, recipients of non-probate assets are liable for their share of the decedent’s debts as well as the costs of administrating the estate (but only up to the value of the non-probate assets received).

Does a Surviving Spouse in Washington State Need to Start a Probate?

[The following applies if the decedent spouse did not have a Will or had a Will leaving everything to the surviving spouse; if the decedent spouse had a Will leaving some or all of his/her assets to others, the analysis of whether probate is required is substantially complicated and we recommend consulting with an experienced probate attorney.]

Since Washington is a community property state (meaning that, generally, all assets acquired during marriage are owned equally by both spouses), if the decedent did not have a Will the answer to this question depends on the characterization of the  deceased spouse’s assets: were the assets all community property, or were some of the assets separate property? For most married couples in Washington state, all of the assets owned by the first spouse to die will likely be considered to be community property.

The Deceased Spouse’s Assets Were All Community Property

If all of the deceased spouse’s assets were community property, then under Washington law, that spouse’s one-half share in those assets automatically transfer to the surviving spouse without any further action required by the surviving spouse. Responsibility for the deceased spouse’s one-half share of all of the community debt also passes to the surviving spouse as well.

Some or All of the Deceased Spouse’s Property was Separate Property

If the deceased spouse owned some assets as separate property, then the surviving spouse does not automatically become the sole owner of those assets, and a probate may be required depending on the type and value of the property.

Special Rule for Real Estate

For real estate held as community property, the surviving spouse automatically becomes the owner of the deceased spouse’s one-half share. However, that does not mean that the title records are automatically changed to reflect that the surviving spouse is the sole owner of the property. Based on our experience in working with real estate title issues and with probate administration, the lawyers of Fennemore recommend that surviving spouses record a Lack of Probate Affidavit with their local Auditor’s Office in order to document the passing of their spouse and the vesting of title in the surviving spouse, in order to reduce any problems with future title transfers.

If the decedent had a Will and left real estate to anyone other than the surviving spouse, probate is necessary to properly document the transfer of title to the beneficiary of the Will, free of creditor claims. In some circumstances, title insurance companies may be willing to insure the beneficiary’s sale of inherited real estate without probate, but probate is required to create a public record that the estate was properly administered, creditor claims were properly addressed (and all unpaid creditor’ claims are cutoff), and no other heirs have any rights in the property.

Navigating Probate as a Surviving Spouse

Navigating the probate process can be complex, and this is even more true when you’re dealing with the loss of a spouse. It’s essential to consult with a qualified probate attorney who can guide you through the process. This legal professional can help determine whether probate is necessary, what assets are subject to probate, and how to navigate the probate court procedures.

Conclusion

In Washington State, whether a surviving spouse needs to start a probate process depends on several factors, including how the deceased’s assets were held and the total value of the assets. Understanding these specifics can be complex, and it’s always best to seek legal advice to ensure you are following the correct procedures.

Remember, during these trying times, it’s crucial not only to understand your legal obligations but also to take care of your emotional well-being. Don’t hesitate to seek support from friends, family, or professionals as you navigate this challenging phase.

Fennemore guides clients following the passing of their spouses, whether that path involves probate or other services. To learn more about how we can assist, please refer to our probate page.