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Washington Probate Instructions



Decedent's Heirs

  1. If No Surviving Spouse

  2. Separate vs. Community Property

  3. Quasi-Community Property

  4. If a Surviving Spouse

  5. Surviving Spouse vs. Children of a Prior Marriage

  6. Missing Heirs


A.  If No Surviving Spouse    


The easier case: If no surviving spouse:



To Decedent's surviving children and lower issue (ie, grandchildren, great-grandchildren, etc.) "By Right of Representation" (also known as "per stirpes," as the relevant portion of a genealogical diagram looks like a stirrup):




In other words, equally among Decedent's children, and with the children of any predeceased child of Decedent (ie, Decedent's grand-children) taking equally in the place of that predeceased child, etc.



Only if no surviving child or lower issue:




All to Decedent's surviving parent or to Decedent's surviving parents equally (ie, up one generation).



Only if no surviving parent:




To the surviving children and lower issue of Decedent's parents by right of representation (ie, brothers, sisters, nephews, nieces, etc.).



Only if no such surviving children or lower issue:




All to Decedent's surviving grandparent or to Decedent's surviving grandparents such that if both maternal and paternal grandparents survive Decedent, then each side takes equally (ie, up two generations).



Only if no such surviving grandparent:




To the surviving children and lower issue of Decedent's grandparents (ie, aunts, uncles, cousins, etc.), with the amounts as described in RCW 11.04.015(2)(e).



And only if no heirs as above, ie, no surviving:

  • Children & lower issue,

  • Parents & lower issue, and

  • Grandparents & lower issue:



To the State of Washington (the property "escheats" to the state).  RCW 11.08.140 but see also RCW 11.04.095 for a savings clause in favor of step-children.



B.  Separate vs. Community Property    


Before tackling the harder case, with a surviving spouse, we need to differentiate between separate and community property and raise the issue of quasi-community property:


C.  Quasi-Community Property    


At first blush, quasi-community property is property acquired by a Decedent while residing outside of Washington that would have been community property of the Decedent and his/her surviving spouse if the Decedent had been residing in Washington when the property was acquired.  RCW 26.16.220  Consequently, quasi-community property is usually not an issue for a Decedent who, during the marriage, has been either a lifetime resident of Washington or a resident of any of the other eight community property states (eg, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, or Wisconsin).


Quasi-community property, however, does become an issue for a Decedent who acquired property during the marriage while living in any of the other, separate property states, where property acquired during marriage is generally considered to be owned all by the husband.  One can understand why a wife might want this "all owned by the husband" consideration to be revisited upon her husband's death, especially if the husband attempts to dispose by Will of more than half of the property acquired during their marriage.


In Washington, quasi-community property is treated at death like community property.  RCW 26.16.230   If the possibility of quasi-community exists in your matter, WASHINGTON PROBATE recommends that you seek legal counsel.  Now, let us return to the issues of:


D.  If a Surviving Spouse    


As to Community Property, the surviving spouse:

In other words, upon Decedent's death, the surviving spouse becomes the owner of all their community property (and generally their quasi-community property, as well).


As to Separate Property, things get more complicated.  The surviving spouse inherits:


E.  Surviving Spouse vs. Children of a Prior Marriage    


Many probate disputes involve the following circumstances:

The situation is complicated further by any of the following circumstances:

These circumstances generate a classic probate dispute between Decedent's surviving spouse and Decedent's children of a prior marriage.  The spouse wants the property characterized as community property, so it will all pass to him/her.  The children want the property characterized as separate property, so at least a share of it will pass to them.  Typically, this results in an expensive legal and accounting nightmare called "tracing," to determine for each property in the estate its separate or community character:

If any of these circumstances are present in your matter, WASHINGTON PROBATE urges you to seek legal counsel.


Lastly, if any of these circumstances are present in your own personal situation, WASHINGTON PROBATE urges you to make a Will, one that clearly and unambiguously specifies who gets what and does so for all possible conditions and outcomes.



F.  Missing Heirs    


How do you notify a missing heir that a probate has begun and that a Personal Representative has been appointed?



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