[WSBAPT] Probate question

[Mike Winslow]

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.
[2010 c 8 § 2005; 1965 c 145 §11.04.250
<http://app.leg.wa.gov/rcw/default.aspx?cite=11.04.250>  . Prior: 1895 c 105
§ 1; RRS § 1366.]
No probate is necessary to vest title in the heirs. Title companies like to
see an Affidavit of Non-Probate, or what is referred to as a Lack of Probate
Affidavit. Call and talk to your friendly neighborhood title officer. 
 
But the DOR still wants their pound of flesh, and they will extract it in
form of excise tax if you go the No Probate route, whereas, if you probate a
will or, if no will, perform administration, then the transfer by Deed from
the estate is exempt. The DOR treats the “transfer” by operation of law (as
provided above), as not exempt under strict reading of the WACs.  I have
posted up on this a few times on this list, so you could find more in
archives. 
 
The decision whether to probate or not, may come down to the cost of probate
versus the cost of the excise tax.
 
Make sure you disclose to the heirs regarding the Notice To Creditors (or
Non-Probate Notice To Creditors) process, the benefits thereof, and if they
elect to forgo that process, get a waiver from them so they don’t claim
professional liability if a creditor’s claim shows up within the two year
SOL.
 
Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com
 
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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sarah Jael Dion
Sent: Friday, July 03, 2015 11:57 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Probate question
 
Hello list-mates. I do estate planning, but have not been involved in doing
probates. 
 
If a person dies and leaves a house (assume one worth less than say $500K),
but no other probate assets, is probate required? I know that strictly
speaking, the answer is yes, and that the house must go through the probate
process in order to transfer title to the heir/s. But in practice, could a
seller/heir obtain the necessary title insurance without opening a probate? 
 
If probate is required, not just legally, but practically, how do probate
lawyers get paid if the house is the only asset?
 
Many thanks for anyone willing and able to educate me a little! 
 
Sarah Jael Dion
 
Dion Law PLLC

206-550-4005
sarah at dionlaw.com
dionlaw.com
 
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