[SPAM] Re: [WSBAPT] Contaminated real property in an estate
Al Falk
afalk at Harlowefalk.com
Mon Aug 18 10:59:40 PDT 2014
You should contact an environmental law attorney. Under federal law there
is “innocent purchaser” status for inherited property. That may or may
not matter to the heirs – they may still want to disclaim the property,
because eventually the person inheriting the property becomes an operator
of the property or wants to dispose of it and then there is a problem for
any potential buyer. By the way, you can’t disclaim property “to”
someone. Instead, it passes as if the disclaimant had predeceased the
decedent, so the property may then pass to the disclaimants’ descendants
or other individuals. Multiple disclaimers may be needed to move the
property to governmental ownership.
Al Falk
Alfred M. Falk
Harlowe & Falk LLP
Attorneys at Law
One Tacoma Avenue N., Suite 300
Tacoma, WA 98403
(253) 284-4413 (direct)
<http://www.harlowefalk.com/> www.harlowefalk.com
Fellow, the American College of Trust and Estate Counsel
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From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Sam Furgason
Sent: Monday, August 18, 2014 10:16 AM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [SPAM] Re: [WSBAPT] Contaminated real property in an estate
I really don’t think the PR, individually, is ever in the chain of title.
The estate would bear responsibility as derived from the decedent, but one
occupying the fiduciary position of personal representative/executor never
“owns” the estate’s property. This raises questions as to the effect of
limitations periods, specifically the 4 and 24 month statutory limits,
have any effect on federal liability statutes, and also the bit about the
statutory vesting’s effect on beneficiaries, but as for the PR, I don’t
think any ownership ever exists. As for the law, that’s billable research
time for someone. There’s probably a CLE presentation, treatise, desk book
or law review article that comes close.
S
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of ROBERT MILLSAP
Sent: Monday, August 18, 2014 10:04 AM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [SPAM] Re: [WSBAPT] Contaminated real property in an estate
I see your argument and I think it is right. I just wish there was some
case law to support it. I would hate to be a PR confronting this
situation and end up with the cost of being the “first impression” in a
court case. How do you protect a PR in this situation over and beyond RCW
11.04.250? Do you move the court for instructions? If I was the PR I
would want that protection I think paid for by the Estate and not out of
my own pocket.
ROBERT MILLSAP
MILLSAP LAW FIRM, P.S.
7016 35TH AVE NE
SEATTLE, WA 98115
206-583-2740
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Howard Herman
Sent: Sunday, August 17, 2014 3:21 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [SPAM] Re: [WSBAPT] Contaminated real property in an estate
11.04.250
When real estate vests — Rights of heirs.
When a person dies seized of lands, tenements or hereditaments, or any
right thereto or entitled to any interest therein in fee or for the life
of another, his or her title shall vest immediately in his or her heirs or
devisees, subject to his or her debts, family allowance, expenses of
administration, and any other charges for which such real estate is liable
under existing laws. No administration of the estate of such decedent, and
no decree of distribution or other finding or order of any court shall be
necessary in any case to vest such title in the heirs or devisees, but the
same shall vest in the heirs or devisees instantly upon the death of such
decedent: PROVIDED, That no person shall be deemed a devisee until the
will has been probated.
It doesn’t appear that the PR is in the chain of title, although by
statute, the PR can convey title.
Howard Herman
Herman Herman & Jolley, P.S.
12340 E Valleyway
Spokane Valley WA 99216
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Robert Millsap
Sent: Saturday, August 16, 2014 6:48 PM
To: wsbapt at lists.wsbarppt.com
Subject: [SPAM] Re: [WSBAPT] Contaminated real property in an estate
The PR would be in the chain of title though. Wouldn't that expose the PR
to liability. I recall that whenever I suggested a corporate fiduciary in
a PR or Trustee role, they would give me a draft of environmental
indemnity language to add to the Will or Trust that really emphasized the
exposure that they felt.
Sent from my iPhone
On Aug 16, 2014, at 6:37 PM, Eric Nelsen <Eric at sayrelawoffices.com> wrote:
Sam may be right, but I think one also could argue that the PR's duty as
fiduciary does not extend to cleanup, so long as the hazard was not
actually deposited on the property during the PR's watch. One could
analogize to a deteriorated house: the PR has no duty to renovate the
house before selling, but only to get the best price consistent with
settling the estate "without loss." If the property was contaminated when
the decedent had it, the PR shouldn't have a duty to clean it up.
I would argue, however, that the PR should disclose the contamination to
the beneficiary, so the bene can at least make an informed decision about
whether to repudiate the gift.
PR could also sell the property with disclosure to buyers, get the best
price possible, and distribute cash. It would require some thinking
through how to insulate the Estate from liability (indemnity from Buyer?),
but I think that's often done for any seller of contaminated property.
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at listswsbarppt.com
<mailto:wsbapt-owner at lists.wsbarppt.com> ] On Behalf Of Sam Furgason
Sent: Saturday, August 16, 2014 2:37 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] Contaminated real property in an estate
The Personal Representative of an estate does not deal at arm’s length
with the beneficiaries, but is a fiduciary who owes the beneficiaries the
highest duty of good faith in all dealings. Any person who is in the chain
of title to real property which contains environmental hazards proscribed
by federal law may be held liable for the cleanup. The estate may owe a
duty to remove the contaminant(s) prior to distribution. Better research
it.
S
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at listswsbarppt.com
<mailto:wsbapt-owner at lists.wsbarppt.com> ] On Behalf Of Sherry Bosse
Lueders
Sent: Saturday, August 16, 2014 12:02 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Contaminated real property in an estate
Has anyone run across the following scenario? PR discovers real property
in an estate is contaminated. Does the PR have any duty to remove
contaminant from the property before transferring it to the beneficiary?
Is there even a duty to disclose the presence of the contamination to the
beneficiary, since no Form 17 would be required if PR were to sell the
real property?
Thanks for your collective wisdom!
Best Regards,
Sherry Bosse Lueders | Of Counsel
Stacey L. Romberg, Attorney at Law
Telephone: (206) 784-5305
Fax: (206) 789-8103
Visit our website at http://staceyromberg.com/.
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