[WSBAPT] House Question

Wed Sep 10 15:01:05 PDT 2014

The husband already owns house by virtue of RCW 11.04.250 and under
Community Property Law.

RCW 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. The title and right to possession of such lands,
tenements, or hereditaments so vested in such heirs or devisees, together
with the rents, issues, and profits thereof, shall be good and valid
against all persons claiming adversely to the claims of any such heirs, or
devisees, excepting only the personal representative when appointed, and
persons lawfully claiming under such personal representative; and any one
or more of such heirs or devisees, or their grantees, jointly or
severally, may sue for and recover their respective shares or interests in
any such lands, tenements, or hereditaments and the rents, issues, and
profits thereof, whether letters testamentary or of administration be
granted or not, from any person except the personal representative and
those lawfully claiming under such personal representative.
The Husband can record an Affidavit of Community Property to confirm the
status of the Death of wife and taking the ownership under community
property law. There is no formal deed necessary to establish title.  But
this seems moot if the house is under water; why perform such work?
Why is a Small Estate Affidavit required? Presumably, we are talking a
joint bank account, maybe a car and the contents of the house. None of
those require even a Small Estate Affidavit. Unless there are children
from prior marriages or some other unusual facts, that is.

Consider doing a Non-Probate Notice to Creditors procedure if there is any
concern about the lender pursuing a deficiency. Give proper notice to the
lender. Unlikely they will figure out how to timely file a creditor’s
claim.
If they do file a creditor’s claim, there is always the Award in Lieu of
Homestead protections to consider.

I would not waste more money on house payments, unless the payment is less
than rent elsewhere. Also, would not spend money on negotiating a Deed in
Lieu, as these are very difficult to actually complete with any of the
national lenders. Just stay as long as possible rent free and move when
foreclosure is completed, if your client is so inclined. If they decide to
move early (before foreclosure is completed) give the lender notice of
abandonment of the property and invite them to take possession to protect
the collateral.

Those are some practically minded thoughts to consider.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it’s confidential. If you are not the
intended recipient, it’s too late to stop reading this message, but you
may not use it for any improper purpose. Huge Disclaimer available upon
request.

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of
amanda_wilson at olypenlawoffices.com
Sent: Wednesday, September 10, 2014 1:42 PM
To: WSBA RPPT Probate & Trust Discussion Forum
Subject: [WSBAPT] House Question

Hello~

Elderly couple married 50+ years never made an estate plan. The wife
passed away, the husband does not have capacity. The very responsible,
loving and involved daughter is trying to handle her mother's estate and
care for the father.

The couple had a home that was recorded "As Husband and Wife". The home is
underwater, needs to be given to the bank via a foreclosure or
deed-in-lieu... although those proceedings have not been started. There
was no will. Besides the house, the couple had personal assets no more
than $20K, if that.

Can the husband acquire the house outside of probate? There is no
community property agreement but the deed says, "As husband and wife". The
benefit of this would be that the daughter could just do a small estate
affidavit, and then the husband alone (or through his Agent) could hand
over the house to the bank. Also, if the estate is insolvent, the probate
cannot be non-intervention... if the banks only remedy is to take the
house, is the estate insolvent if they have no other debtors?

Thanks~

Amanda M. Wilson, esq.

Olympic Peninsula Law Offices, LLC
219 W Patison St.
Port Hadlock, WA 98339

(360)437-4172 office
(206)331-7851 cell phone

"I've learned that people will forget what you said, people will forget
what you did, but people will never forget how you made them feel." ~ Maya
Angelou
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