[WSBAPT] Need Feedback RE "Double" Probate

[Heather de Vrieze]

I have done double probates, years ago, but have found that they complicate things with the IRS, so only make things easier in a few narrow situations. If property is being sold, with title insurance involved, a lack of probate affidavit is probably better, and I find title companies will easily insure with this easy to complete/record document. Or, a simple probate for the first spouse is only another filing fee and can generally be opened and closed with little fanfare if it is after the two year SOL for creditors.

I also think about the estate bank account. EIN will only be issued for one decedent, so using the current (surviving spouse) for this makes sense. Then the report of sale (1099) can easily be issued under this EIN and the proceeds distributed to the bank account that matches.

Heather

Heather S. de Vrieze
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of James Dolan
Sent: Sunday, May 31, 2026 12:08 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Need Feedback RE "Double" Probate

I'm recalling that this topic has been discussed some time ago on this listserv:

Spouse 1 dies intestate.  All finances are jointly owned or have Spouse 2 named as Beneficiary.  Their house is jointly owned Community Property.  Spouse 1 has no children.  No probate.  Spouse 2 goes on living for another 7 years.

Spouse 2 dies testate.

We attempt to open probate in the name of both Spouse 1 and Spouse 2 for the purpose of having PR appointed to sell the house.  I have done this 10-12 times over the past 20 years with no problem.  Until last Friday.  Judge says judge has conducted judge's own research and cannot find any legal authority that allows a double probate.  I ask the judge if the judge has found any legal authority that prohibits it.  Nope. I inform the judge that I have done this several times.  Judge says "Because 'you've done it before' doesn't mean it is appropriate."

Another attorney who is present on a different matter graciously attempts to rescue me, spontaneously approaches the bench and informs the court, on the record, that this attorney has also done research on this question, has found no case law or statutes on point, and further informs the court that she also has done several double probates with no problem.

I ask the judge what alternatives the judge thinks would be appropriate.  The judge says that the PR can do a Lack of Probate Affidavit to convey the real property from Spouse 1 to Spouse 2.  I ask the judge what would be the benefit of doing it that way.  (Full disclosure - at this point I may have sounded a bit irritated.)  Judge ignores my question and calls the next case.

My questions for all of you smarter than me people:


  1.  Have any of you done this before?
  2.  If so, have you ever encountered resistance from the bench?

Thanks for your thoughts.

Jim Dolan

=========================

Jones Butler Dolan, PS
P.O. Box 458
10027 SR 532
Stanwood, WA 98292
(tel) 360-336-2939
(fax) 360-336-2949

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