[WSBAPT] Removing Deceased Father's Name from Deed

Thu Jun 25 10:08:03 PDT 2015

Eric,

Pet peeves about disso decrees.…really? You just opened the proverbial Pandora’s box. 

Here’s my top 2:

1. Awarding the home or other real property that is subject to underlying secured interest and promissory note executed by both spouses;

2. Giving one spouse a secured interest (DOT) in home or other property subject to underlying secured interest in return for a promissory note of the other party to pay a stated amount over time to balance the property award……….and then the spouse that gets the real property files bankruptcy and gets the secured interest avoided because the value of the property won’t cover all the secured debt of the former spouse.

I may not have articulated these artfully, but doubt these are new to you either. There are more but need to get back to work.

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

Rodgers, Kee & Card, P.S.

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

Phone: 360-352-8311

Facsimile: 360-352-8501

Email: tjw at buddbaylaw.com

Skype: thomas.westbrook

www.buddbaylaw.com

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Thursday, June 25, 2015 9:40 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

Ha! I shouldn't have said anything about the CLE...I've been drafting materials for it, and planning to approach the Family Law Section about getting it on somewhere. But so far it's just a CLE in my imagination. And, I'm still trying to gather best practices tips.

Thanks everybody for all the interest! And if you have a pet peeve about something that happens in divorce Decrees that has caused you real estate or title conniptions, please email me off the list and let me know, so I can add that issue to the materials.

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-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John McCrady
Sent: Thursday, June 25, 2015 9:05 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

Thank you for your excellent summation.

I agree wholeheartedly with your cautions about real property distribution language in Decrees of Dissolution and welcome your contemplated CLE.  Inexact draftsmanship in Decrees has caused un-necessary grief to many parties.

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98466

253-476-5721

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Wednesday, June 24, 2015 3:34 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

Thanks for your appreciation! I'd note, though, that I have done a number of cases involving post-Decree enforcement where the Decree's language is less than clear and a title company won't insure without a QCD. It also gets tricky if the Decree awards "equity" in the property, as opposed to clear fee title. So a Decree can handle the property transfer, but if it's not drafted correctly there may be further work to do.

(I have this briefing at my fingertips because I'm trying to put together materials for a "real property for divorce lawyers" CLE topic.)

CONTRARY TO WSBA Family Law Deskbook §69.2(4), the award of "equity in the home located at [common address]" is not an award of title subject to encumbrances. The Deskbook cites Hill v. Hill, 3 Wn.App. 783, 477 P.2d 931 (1970). Hill is disapproved by Stokes v. Polley, 145 Wn.2d 341, 350, 37 P.3d 1211 (2001). In Stokes, the Decree did not include a legal description, and awarded "one-half the equity" to each party. The property was deemed to have been the husband's separate property on the record (purchased on a real estate contract by husband in his name only, before the marriage), while the Decree specifically stated that it divided only the community property of the parties. In Stokes, the award of equity to the wife was held to be a monetary award, not ownership. Query whether a title insurer would accept that, or a third party buyer. In drafting Decrees and settlements, avoid use of award of "equity" - award the land, and allocate the debt, separately. Cf. In re the Marriage of Olivieri, 161 Wn. App. 1012 (April 18, 2011) 65378-4-I (unpublished).

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-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of David Kazemba
Sent: Wednesday, June 24, 2015 2:15 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

Yes thank you!

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Kerry Richards
Sent: Wednesday, June 24, 2015 2:10 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

Good Job Eric. You have stated the law in this matter succinctly and correctly.

Yours truly,

Kerry A. Richards

_____________________

Bradshaw & Richards, P.S.

11300 Roosevelt Way NE, Suite 300

Seattle, WA 98125

Phone: (206) 622-3444

Fax:  (206) 363-8067

Email: KRichards at brad-rich-law.com

Web: www.brad-rich-law.com <http://www.brad-rich-law.com/> 

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Wednesday, June 24, 2015 12:54 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

I agree with Josh--assuming the Decree of Dissolution legally described the property and clearly awarded it to the mother, the Decree is sufficient and no QCD is needed.

A decree of dissolution awarding property situated within the state has the operative effect of transferring title. In re Marriage of Kowalewski, 163 Wn.2d 542, 548, 182 P.3d 426 (2008), citing see United Benefit Life Ins. Co. v. Price, 46 Wn.2d 587, 283 P.2d 119 (1955), overruled on other grounds by Aetna Life Ins. Co. v. Wadsworth, 102 Wn.2d 652, 689 P.2d 46 (1984). "The decree operates not only to vest in the spouse designated the property awarded to him or her, but to divest the other spouse of all interest in the property so awarded, except as the decree may otherwise designate." Price, 46 Wn.2d at 589.

Second thought--since you're just distributing mother's estate, it's okay to do a Quitclaim Deed from Estate to the beneficiaries. That would transfer all mother's interest to beneficiaries, whatever it might be. The father's interest is really more of a title clean-up issue, and the Estate doesn't have to deal with it if the PR doesn't want to--PR's only duty is to transfer whatever the mother's interest may be, title warts and all.

If they want to clean it up, then getting a copy of the Decree and talking with a title company about whether they think it's effective is probably easiest route. If they plan to sell anyway, just order title and it can all get straightened out as part of the title report process.

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-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Wednesday, June 24, 2015 12:24 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

Copy of Decree should be sufficient.  Don’t need a deed.  Ask your title company.

From: mailto:david at davittlaw.com 

Sent: Wednesday, June 24, 2015 12:17 PM

To: WSBA Probate & Trust Listserv <mailto:wsbapt at lists.wsbarppt.com>  

Subject: Re: [WSBAPT] Removing Deceased Father's Name from Deed

To the list please. 

David Kazemba

Davitt Law Group, PLLC

Sent from my iPhone

On Jun 24, 2015, at 12:06 PM, "Michelle Paratte" <m.paratte at earthlink.net> wrote:

	Hello colleagues:

	My client is the administrator of his mother estate.  I cannot transfer the house to him and his brother as instructed in the Will because the name of their deceased father is still on the deed.  His mother and father divorced in 1972 and she got the house as her separate property, but father never executed a quit-claim deed.  How do I get the father’s name off the deed?

	Thanks for the help.

	M. Paratte

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