[WSBAPT] Husband and Wife signed the same will

[Joshua McKarcher]

Sorry, clarification: in my second paragraph, I should not say "if both are true" then you have a valid will. It's a valid will regardless, I "think," but those two things would make it simpler and I would think would eliminate lots of potential conflicts and tax problems. I merely proved I am writing late at night and too quickly.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Tuesday, January 24, 2023 9:18 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Husband and Wife signed the same will

Sara,

Unless you find caselaw saying something to the contrary (but I'm trying to think "why" it would), it sounds like this instrument you have is a "will," as defined in RCW 11.02.005(24)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.02.005(24)> and RCW 11.12.020<https://app.leg.wa.gov/RCW/default.aspx?cite=11.12.020>. If it contains what it must, I see no reason a court would require that you not simply ignore the portions of the will irrelevant to the wife's estate being administered in the probate proceeding.

Hopefully the will says "surviving spouse gets it all" (as I presume happened); and hopefully wife's estate (their remaining "combined estate," so to speak) is not estate taxable. If both are true, I am thinking you have an instrument that - although it should perhaps have been delivered to a court years ago when the first spouse died - remains the surviving spouse's unrevoked "will" under Washington law.

Please let us know if you discover something to the contrary. Interesting issue!

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com/>



From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Sara Longley
Sent: Tuesday, January 24, 2023 6:33 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Husband and Wife signed the same will

Thanks, that is comforting.  For what it's worth, if one reads the sections of the will that pertain to the wife's wishes only, everything is there that I would want to see.  I'm not even sure if I need to say anything about it being a joint will in my petition.


Sara D. Longley
Senior Attorney
Ivy Law Group, PLLC
1734 NW Market Street
Seattle, WA 98107
Phone: (206) 706-2909
sara at ivylawgroup.com<mailto:sara at ivylawgroup.com>
Pronouns: she, her, hers

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Philip N. Jones
Sent: Tuesday, January 24, 2023 5:23 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Husband and Wife signed the same will

Many, many years ago this was common practice.  Maybe in the 1950s or 1960s.  When I started practicing law in 1976, my senior partners used to talk about such wills, and the problems they caused for estate tax purposes.  I recall being told that the IRS eventually gave up on their concerns, but I don't remember much beyond that.  I have no idea what the current law is, either regarding the validity of a joint will or the tax consequences.  If you find anything, please let the rest of us know.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Sara Longley
Sent: Tuesday, January 24, 2023 4:40 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Husband and Wife signed the same will

Listmates,

I have never seen this before.  I have a will made by a husband and wife jointly (he died some time ago, and now she has also died).  It was signed in Oregon in 1981.  I don't see anything in the current OR law that tells me whether this was legitimate or not at that time.  Anyone know?  If so, I will be forever in your debt if you have a citation to the authorizing law - doubly so if you have a sample petition.

Best,
Sara Longley

Sara D. Longley
Senior Attorney
Ivy Law Group, PLLC
1734 NW Market Street
Seattle, WA 98107
Phone: (206) 706-2909
sara at ivylawgroup.com<mailto:sara at ivylawgroup.com>
Pronouns: she, her, hers

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