[WSBAPT] Joint real property with right of survivorship - anything additional recorded at death of joint tenant?

Fri Jul 24 09:55:03 PDT 2015

I have posted comments on this  bulletin from the DOR in the past. In short,
if heirs, other than a surviving spouse, want to skip probate and use the
Lack of Probate Affidavit as the means to establish title, then they are
going to pay an excise tax for the "transfer". The alternative is to file a
probate to avoid the excise tax.  Sometimes paying the excise tax is less
money than doing a probate. Sometimes not. The DOR is still implementing
policy of collecting tax, even though the so called "transfer" is by
operation of law, and requires no recording of any document. For more on
this, see attached memo from Dwight Bickel,  title counsel for several title
companies over the years.

For the surviving spouse, where title is taken as Husband and Wife, the only
necessary action is to record the Affidavit of Community Property, if there
is no Community Property Agreement. If there is a CPA, then you may simply
record the CPA. Attaching the death certificate to any recording is
optional, but in my opinion prudent, if properly redacted. Any requirement
of a deed in this situation is based on misinformation on the part of the
Treasurer's staff. The DOR bulletin you attached does not require a deed to
accomplish change of record ownership on the tax rolls. You might call Steve
Bren at the DOR and discuss with him. He administers this area for the DOR.
He may be willing to educate the misinformed Treasurer. I believe Steve is
the author of the bulletin you attached.

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

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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-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jennifer Johnson
Sent: Thursday, July 23, 2015 5:14 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Joint real property with right of survivorship -
anything additional recorded at death of joint tenant?

I haven't run into this with an auditor's office yet, but I have received
this advice from employees in Treasurer's office, one of whom was nice
enough to suggest how I should word my deed in case I didn't understand how
it should be done.  This person wouldn't do anything unless I presented a
deed (wouldn't accept a death certificate) with the deceased spouse's name
on it, so I did a deed from the surviving spouse, as herself and as her
husband's heir, to the surviving spouse and claimed the inheritance
exemption on the REET.  It took less time for me to do the deed than it took
for me to argue, and my client was ok with that, so that's what we did.  In
other situations, if there has been a community property agreement, then
I've recorded an affidavit and death certificate.

One of the Treasurers that I talked to about this issue told me that they
are getting more stringent about these situations because of information
that they received from the Department of Revenue about transfers when a
married person dies.  I've attached a copy of the document that she shared
with me.  I'd be interested to get others' opinions about this. 

Jennifer

Jennifer M. Johnson | Attorney
Hanigan Law Office, P.S.
P.O. Box 39 / 68 Main Street
Cathlamet, WA 98612
(360) 795-3494

On 7/23/15 4:06 PM, "Mike Winslow" <mike at winslegal.com> wrote:
The language used in the deed "husband and wife" establishes community
property. The reference to survivorship is extraneous. There is no need to
record an additional deed. The clerk at the auditor's office is practicing
law, and that not very well. 

It would be useful to record an Affidavit of Community Property, with
attachment of the death certificate (redacting the SSN and any other info
you don't want in the public record).
You should also notify the Assessor/Treasurer of the death and they will
change the tax rolls to the survivor's name.

A form of affidavit is available at the DOR website and complies with the
rules for exemption from excise tax.
http://dor.wa.gov/content/Search/Default.aspx?search=affidavit+community+pro
perty
Select the first item in the screen and you will  see the form in PDF.

More Dirt, Than Dead,

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-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Kristina DeVore
Sent: Thursday, July 23, 2015 3:13 PM
To: WSBA Real Property Listserv; WSBA Probate & Trust Listserv
Subject: [WSBAPT] Joint real property with right of survivorship - anything
additional recorded at death of joint tenant?

Listmates:

I have a client who owned real property with her spouse.  The husband owned
the property initially, quit claimed the property to him and his wife as
follows:  "H and W, Husband and Wife, with Right of Survivorship."
Husband/Joint owner is now deceased.  The recording office in Clark County
tells me that I need to record a new deed and file an excise tax return as
well.  I was initially thinking that I would need to file the death
certificate to show proof of death of joint tenant and possibly and
affidavit.  Is this additional step of recording a new deed necessary?

Thanks for any words of wisdom!

Kristina

Kristina S. DeVore | Attorney & Counselor at Law

KRISTINA DEVORE LAW FIRM, pllc | 300 W. 15th Street, Suite 305 | Vancouver,
WA  98660

Phone: (360) 695-0535 | Fax: (360) 737-4154 | kristina at devore-law.com

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