[WSBAPT] Real Property in Probate

Tue Nov 17 17:16:22 PST 2015

Watch out as to use of disclaimer.

It is common that we think that a disclaimer of a one-half share of the Estate will result in the other equal Beneficiary getting the whole of the asset. (I know that I sometimes get this concept wrong, thinking that a little do-it-yourself re-arranging of a plan of distribution can be easily accomplished by using a disclaimer.)

BUT, the statute related to a Disclaimer would result in the heirs of the Disclaiming Individual succeeding that person as to the receipt of the half interest in the asset.  RCW 11.86.041 (1) provides that upon execution of the Disclaimer,   “the interest disclaimed shall pass as if the beneficiary had died immediately prior to the date of the transfer of the interest. The disclaimer shall relate back to this date for all purposes.”

Cleanest way is to leave a paper trail.  It gets distributed to the two individuals from the PR of the Estate.  Then, gift of Brother’s one-half interest to Brother 2.

I don’t know how much a one-half interest would be worth, but we are getting to the end of the year, and $28K of transfer could take place ($14K in 2015 and $14K early in 2016) using the annual exclusion.  Then, gift tax return would have to be filed for only the net value of the one-half interest that exceeds the $28K.

Good luck.

Regards,

Doug Bratt

Douglas J. Bratt
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Tuesday, November 17, 2015 4:42 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Real Property in Probate [auto-ip]

Mieko,

Just to be clear, I don’t think you need to record after completion of probate necessarily, but after deed to both sons in distribution of the estate is recorded.

It may also possible to have son 2 execute a disclaimer for the same effect. If it is a straight up gift, consider the potential gift tax consequence.

Heather

Heather S. de Vrieze
Attorney-at-Law
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3909 California Avenue SW
Seattle, WA 98116-3705
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mieko Shikuma
Sent: Tuesday, November 17, 2015 4:06 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Real Property in Probate

Thank you, Heather.
Just for clarification, the real property is the only asset in this WA probate.
I think I will do as you suggest.  I will get the QCD and REET executed in advance (in case Son 2 dies before completion of probate) and record it after completion of probate.

Best regards,

Ms. Mieko Shikuma
Shikuma Law Offices, PLLC

1833 N. 105th St suite 101
Seattle, WA 98133
206 853 1541
www.shikumalaw.com<http://www.shikumalaw.com>

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On Tue, Nov 17, 2015 at 3:47 PM, Heather deVrieze <heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>> wrote:
If this is a situation of a true quit claim, i.e. son 2 is entitled to his ½ of the property, isn’t getting non-pro rata distribution of other estate assets and is simply “giving” his interest to his brother, I would distribute from estate (Personal Representative deed to both sons) then have son 2’s QCD recorded.

If there is something else going on, my answer might be different.

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500<tel:%28206%29938-5500>
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Mieko Shikuma
Sent: Tuesday, November 17, 2015 2:57 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Real Property in Probate

Dear Real Property guru,

Probate procedure will distribute a real property to Son 1 and Son 2 equally.
Son 1 is the PR.
Before completion of the probate, Son 2 will execute a QCD to Son 1.
Question:
1.  Should the PR's deed just distribute the real property to just Son 1 since Son 2 has already executed a QCD for the benefit of Son 1?
2.  Should the PR still distribute the real property to Son 1 and Son 2 equally on PR's deed and let the QCD operate and Son 2's after acquired interest go to Son 1?
3.  What is the title company's perspective?
Thank you.
Best regards,

Ms. Mieko Shikuma
Shikuma Law Offices, PLLC

1833 N. 105th St suite 101
Seattle, WA 98133
206 853 1541<tel:206%20853%201541>
www.shikumalaw.com<http://www.shikumalaw.com>

The addressee of this email is the only intended recipient. If you receive this email in error, please notify me immediately of the error and then erase it from your computer system.

This email provides only general legal information, and not specific legal advice.  Information contained in any email is not a substitute for a personal consultation with an attorney.  This message does not provide any legal advice, imply an attorney-client relationship, and does not contain the signature of the sender or any other party.  Do not rely on this message without specific authorization from the sender.

You are not a client of this law firm unless you have paid a retainer and signed an attorney/client agreement for representation.

Circular 230 Disclosure:  Pursuant to recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax-related matters
addressed herein.

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