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

Fri Jul 24 11:28:20 PDT 2015

Thank you Mike, I appreciate the info.

Jennifer

On 7/24/15 9:55 AM, "Mike Winslow" <mike at winslegal.com> wrote:

> 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 ³transfer². 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 ³transfer² 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 Treasurer¹s 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
>  
> This message is from an attorney, so it¹s confidential. If you are not the
> intended recipient, it¹s 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 haven¹t run into this with an auditor¹s office yet, but I have received this
> advice from employees in Treasurer¹s office, one of whom was nice enough to
> suggest how I should word my deed in case I didn¹t understand how it should be
> done.  This person wouldn¹t do anything unless I presented a deed (wouldn¹t
> accept a death certificate) with the deceased spouse¹s name on it, so I did a
> deed from the surviving spouse, as herself and as her husband¹s 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 that¹s what we did.  In other situations, if there has
> been a community property agreement, then I¹ve 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.  I¹ve attached a copy of the document that she shared with me.  I¹d be
> interested to get others¹ 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 ³husband and wife² establishes community
> property. The reference to survivorship is extraneous. There is no need to
> record an additional deed. The clerk at the auditor¹s 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
> don¹t want in the public record).
> You should also notify the Assessor/Treasurer of the death and they will
> change the tax rolls to the survivor¹s 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+prope
> rty
> 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 it¹s confidential. If you are not the
> intended recipient, it¹s 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:  ³H and W, Husband and Wife, with Right of Survivorship.²
> 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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