[WSBAPT] Fraudulent deed transfers
Paul Neumiller
pneumiller at hotmail.com
Mon Apr 25 09:15:23 PDT 2016
Theresa, I was able to kick out a “gift deed” in the context of a probate. Here’s a part of my memo of P&A:
I. ISSUE
Whether the Gift Deed executed by the Decedent is a proper and valid gift of community real property without the signature or express or implied consent of her husband.
II. RULE
To be a proper and valid gift of community property, a spouse must have the express or implied consent of the other spouse. To be a proper and valid conveyance of community real property, both spouses must join in the execution of the deed.
Section 26.16.030 of the Revised Code of Washington, in part, states:
26.16.030. Community Property Defined – Management and Control. Property not acquired or owned, as prescribed in RCW 26.16.010 [Separate Property of Husband] and 26.16.020 [Separate Property of Wife], acquired after marriage by either husband or wife or both , is community property. Either spouse, acting alone, may manage and control community property, with a like power of disposition as the acting spouse has over his or her separate property, except:…
(2) Neither spouse shall give community property without the express or implied consent of the other.
(3) Neither spouse shall sell, convey, or encumber the community real property without the other spouse joining in the execution of the deed or other instrument by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument must be acknowledged by both spouses.….
In Nichols Hill Bank v. McCool, Jr., 104 Wn.2d 78, 701 P.2d 1114 (1985) (a copy of which is attached as Attachment “A”), the Washington Supreme Court interpreted RCW 26.16.030(2) where a husband guarantied a loan to a son without his wife’s consent. The loan was discharged in bankruptcy for the son and the bank sought judgment against the husband’s separate property and the husband’s one-half interest in the community property. The trial court dismissed the claim against the husband’s community property. The Supreme Court held that:
RCW 26.16.030(2) specifically requires the consent of both spouses before a gift of community property can be effectuated. If we found that a creditor could reach the donor spouse’s one-half interest in community property, the total amount of that property would be diminished. We would, in effect, be defying the statutory mandate by allowing the community estate to be gratuitously reduced without the consent of both spouses.
Id. at 88. The Supreme Court affirmed the trial court judgment dismissing the claim against the husband’s community property solely because the wife had not given consent.
A second case is factually similar to this matter. In Bosone v Bosone, 53 Wn. App. 614, 768 P.2d 1022 (1989) (a copy of which is attached as Attachment “B”), a husband and wife entered into a community property agreement that converted all of their separate assets into community property. Unbeknownst to the wife, the husband deeded their residence to his children from a former marriage. After the husband’s death, his children from the former marriage listed the residence for sale and the surviving spouse brought a quiet title action. The Washington Court of Appeals affirmed the trial court’s grant of summary judgment to the wife and declared the deed void and invalid under both RCW 26.16.030(2) (requiring consent of both spouses for gift of community property) and RCW 26.16.030(3) (requiring both spouses to join in and acknowledge a conveyance of community real property.)
From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Theresa Nguyen
Sent: Saturday, April 23, 2016 11:04 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] Fraudulent deed transfers
Does anyone know what the remedies are or where to start if your client's spouse fraudulently transferred community property by deed?
The deed states "spouse's name", "an unmarried individual" although they are still married.
The sale price was also less than the county's assessed value...but we have no clue who the grantee is. Some research suggest they might be foreign citizens and there is no way to contact them. After doing a record search on the Address listed as grantee's address, the grantee does not own that property.
Any tips would be really appreciated.
Thank you.
Theresa Nguyen, J.D., LL.M.
Law Office of Theresa Nguyen, PLLC
707 S Grady Way, Suite 600 | Renton, WA 98057 <x-apple-data-detectors://11/0>
Ph. 425.998.7295 <tel:425.998.7295> | Fax 425.420.2695 <tel:425.420.2695>
Email: theresa at tnguyenlaw.com <mailto:theresa at tnguyenlaw.com> | Mobile: 206.499.9515 <tel:206.499.9515>
Website: www.tnguyenlaw.com <http://www.tnguyenlaw.com/>
On Apr 23, 2016, at 12:00 PM, wsbapt-request at lists.wsbarppt.com <mailto:wsbapt-request at lists.wsbarppt.com> wrote:
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Today's Topics:
1. Releasing PR and appointing new one - proper forms and
language (Steve Waltar)
2. Re: Releasing PR and appointing new one - proper forms and
language (Eric Nelsen)
3. Re: Releasing PR and appointing new one - proper forms and
language (pugetsoundlaw at gmail.com <mailto:pugetsoundlaw at gmail.com> )
4. Re: Releasing PR and appointing new one - proper forms and
language (Douglas Bratt)
----------------------------------------------------------------------
Message: 1
Date: Fri, 22 Apr 2016 20:38:25 +0000
From: Steve Waltar <steve at waltar.com <mailto:steve at waltar.com> >
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] Releasing PR and appointing new one - proper forms
and language
Message-ID:
<BN3PR0201MB09302EFD618F57BF1ED86998D96F0 at BN3PR0201MB0930.namprd02.prod.outlook.com <mailto:BN3PR0201MB09302EFD618F57BF1ED86998D96F0 at BN3PR0201MB0930.namprd02.prod.outlook.com> >
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I have a case in which the existing PR listed in a Last Will and Testament (probate already begun) wants to resign. Also, the only other listed alternate PR ants to decline.
I have two questions: /requests for help.
First, Do I need a new petition and order and oath to get a new Administrative PR appointed? If so, would anyone share pleadings with me? I'm fine with the Declination by the alternate PR.
Second, what is the proper language to have when releasing the existing PR. In other words, should there be language to "release" the existing PR from fiduciary duties, give the courts blessing or hold harmless since fiduciary duties are terminated, and of course to cancel the existing Letters Testamentary?
Stephen M. Waltar, PS
Estate Planning Law
1750 - 112th Avenue NE, Suite C245
Bellevue, WA 98004
(425) 455-6788
www.waltar.com <http://www.waltar.com> <http://www.waltar.com/>
[cid:image002.jpg at 01CA47FC.9ED8CEE0]<http://www.waltar.com/>
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------------------------------
Message: 2
Date: Fri, 22 Apr 2016 21:23:34 +0000
From: Eric Nelsen <Eric at sayrelawoffices.com <mailto:Eric at sayrelawoffices.com> >
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Releasing PR and appointing new one - proper
forms and language
Message-ID:
<8CF6ADB264BB704BB884B2ED9C1931D40187F9292E at SBS2011.SayreLawOffices.local <mailto:8CF6ADB264BB704BB884B2ED9C1931D40187F9292E at SBS2011.SayreLawOffices.local> >
Content-Type: text/plain; charset="us-ascii"
See RCW 11.28.290<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true#11.28.290> &full=true#11.28.290> to start--a PR who resigns must account to the successor. It can be done privately and informally, outside the court, but an initial duty of the successor PR is to receive the accounting from the resigning PR and ensure that the resigning PR has turned over all assets, etc. Often this merely amounts to turning over some papers and maybe helping change over the estate bank account.
Once the resigning PR has fully accounted to her/his successor, the court should "discharge" her/him. The initial resignation should be "accepted" by the court and the new PR appointed, but the old PR isn't "discharged" until the Court is certain that all duties up to that point have been met.
You do need a new petition, order, and oath for the new PR, just like at the beginning, with appropriate changes to reflect acceptance of resignation of old PR, and some instructions that old PR shall account to the new PR and shall be discharged, say, "upon filing by the new PR of a Receipt acknowledging receipt of a satisfactory accounting and possession and control of all estate property formerly managed by the old PR." Or some such like that. If something goes wrong, the new PR can always petition the court for other relief.
New PR can get nonintervention powers also if available--see RCW 11.28.280<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true#11.28.280> &full=true#11.28.280>.
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> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Steve Waltar
Sent: Friday, April 22, 2016 1:38 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Releasing PR and appointing new one - proper forms and language
I have a case in which the existing PR listed in a Last Will and Testament (probate already begun) wants to resign. Also, the only other listed alternate PR ants to decline.
I have two questions: /requests for help.
First, Do I need a new petition and order and oath to get a new Administrative PR appointed? If so, would anyone share pleadings with me? I'm fine with the Declination by the alternate PR.
Second, what is the proper language to have when releasing the existing PR. In other words, should there be language to "release" the existing PR from fiduciary duties, give the courts blessing or hold harmless since fiduciary duties are terminated, and of course to cancel the existing Letters Testamentary?
Stephen M. Waltar, PS
Estate Planning Law
1750 - 112th Avenue NE, Suite C245
Bellevue, WA 98004
(425) 455-6788
www.waltar.com <http://www.waltar.com> <http://www.waltar.com/>
[cid:image002.jpg at 01CA47FC.9ED8CEE0]<http://www.waltar.com/>
If we should be helping someone you care about,
please don't keep us a secret!
[facebook]<https://www.facebook.com/pages/Stephen-M-Waltar-PS/663832273655743> [twitter] <https://twitter.com/WaltarLaw> [linkedin] <http://www.linkedin.com/company/3173783?trk=tyah> [g-plus-icon-32x32] <https://plus.google.com/u/0/114715232767415279995> [youtube] <http://www.youtube.com/StephenMWaltarPS>
Circular 230 Warning: This communication is not intended to constitute tax advice and may not be used by any person or entity for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service.
Confidentiality Notice: The information contained herein and any attachments are a private communication sent by the Law Firm of Stephen M. Waltar, PS and may contain confidential and/or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, forwarding or any form of copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the e-mail and any attachments from your system.
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------------------------------
Message: 3
Date: Fri, 22 Apr 2016 14:37:06 -0700
From: <pugetsoundlaw at gmail.com <mailto:pugetsoundlaw at gmail.com> >
To: "'WSBA Probate & Trust Listserv'" <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Releasing PR and appointing new one - proper
forms and language
Message-ID: <002401d19cdf$1e3f9ae0$5abed0a0$@gmail.com <mailto:002401d19cdf$1e3f9ae0$5abed0a0$@gmail.com> >
Content-Type: text/plain; charset="us-ascii"
Also, a new PR that applies for appointment and who is not named in a will
usually has to post a bond, even if the will waived bond for those named.
You may get all interested parties to sign off on a waiver of bond for your
new PR, usually all the heirs is sufficient, but commissioner may consider
protection for creditors too.
The new letters issued will be "Letters of Administration with Will Annexed"
Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com <mailto:roberts at pugetsoundlaw.com> <mailto:roberts at pugetsoundlaw.com>
From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Friday, April 22, 2016 2:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Releasing PR and appointing new one - proper forms and
language
See RCW 11.28.290
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true#11.28.290> &full=true#11.28.290> to
start--a PR who resigns must account to the successor. It can be done
privately and informally, outside the court, but an initial duty of the
successor PR is to receive the accounting from the resigning PR and ensure
that the resigning PR has turned over all assets, etc. Often this merely
amounts to turning over some papers and maybe helping change over the estate
bank account.
Once the resigning PR has fully accounted to her/his successor, the court
should "discharge" her/him. The initial resignation should be "accepted" by
the court and the new PR appointed, but the old PR isn't "discharged" until
the Court is certain that all duties up to that point have been met.
You do need a new petition, order, and oath for the new PR, just like at the
beginning, with appropriate changes to reflect acceptance of resignation of
old PR, and some instructions that old PR shall account to the new PR and
shall be discharged, say, "upon filing by the new PR of a Receipt
acknowledging receipt of a satisfactory accounting and possession and
control of all estate property formerly managed by the old PR." Or some such
like that. If something goes wrong, the new PR can always petition the court
for other relief.
New PR can get nonintervention powers also if available--see RCW 11.28.280
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true#11.28.280> &full=true#11.28.280> .
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>
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Steve Waltar
Sent: Friday, April 22, 2016 1:38 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Releasing PR and appointing new one - proper forms and
language
I have a case in which the existing PR listed in a Last Will and Testament
(probate already begun) wants to resign. Also, the only other listed
alternate PR ants to decline.
I have two questions: /requests for help.
First, Do I need a new petition and order and oath to get a new
Administrative PR appointed? If so, would anyone share pleadings with me?
I'm fine with the Declination by the alternate PR.
Second, what is the proper language to have when releasing the existing PR.
In other words, should there be language to "release" the existing PR from
fiduciary duties, give the courts blessing or hold harmless since fiduciary
duties are terminated, and of course to cancel the existing Letters
Testamentary?
Stephen M. Waltar, PS
Estate Planning Law
1750 - 112th Avenue NE, Suite C245
Bellevue, WA 98004
(425) 455-6788
<http://www.waltar.com/> www.waltar.com <http://www.waltar.com>
<http://www.waltar.com/>
If we should be helping someone you care about,
please don't keep us a secret!
<https://www.facebook.com/pages/Stephen-M-Waltar-PS/663832273655743>
<https://twitter.com/WaltarLaw>
<http://www.linkedin.com/company/3173783?trk=tyah>
<https://plus.google.com/u/0/114715232767415279995>
<http://www.youtube.com/StephenMWaltarPS>
Circular 230 Warning: This communication is not intended to constitute tax
advice and may not be used by any person or entity for the purpose of
avoiding penalties that may be imposed by the Internal Revenue Service.
Confidentiality Notice: The information contained herein and any attachments
are a private communication sent by the Law Firm of Stephen M. Waltar, PS
and may contain confidential and/or legally privileged information meant
solely for the intended recipient. If you are not the intended recipient,
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------------------------------
Message: 4
Date: Fri, 22 Apr 2016 23:57:10 +0000
From: Douglas Bratt <djbratt at mbavancouverlaw.com <mailto:djbratt at mbavancouverlaw.com> >
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Releasing PR and appointing new one - proper
forms and language
Message-ID:
<CE7DE311763C284CBA15D1B0B4122FAA01532B747C at Server01.mbavancouverlaw.com <mailto:CE7DE311763C284CBA15D1B0B4122FAA01532B747C at Server01.mbavancouverlaw.com> >
Content-Type: text/plain; charset="us-ascii"
Hello:
Eric Nelson's reply is, as it most often is, thorough and thoughtful.
One pitfall in the present situation is that the two persons mentioned in the Will to serve were probably authorized to serve "without bond," per the provisions of the Will.
The person who is to serve as the Substitute PR has not been similarly trusted by the Testator/Testatrix, by name, in the Will.
So, it very well might be that the new PR will be required to obtain and file a Personal Representative's Bond.
My three (3) cents (higher rates on Fridays).
Regards,
Doug Bratt
Douglas J. Bratt
Lawyer
[Envelope scaled Foster]
Office: (360) 213-2040
Fax: (360) 213-2030
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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 Eric Nelsen
Sent: Friday, April 22, 2016 2:24 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Releasing PR and appointing new one - proper forms and language
See RCW 11.28.290<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true#11.28.290> &full=true#11.28.290> to start--a PR who resigns must account to the successor. It can be done privately and informally, outside the court, but an initial duty of the successor PR is to receive the accounting from the resigning PR and ensure that the resigning PR has turned over all assets, etc. Often this merely amounts to turning over some papers and maybe helping change over the estate bank account.
Once the resigning PR has fully accounted to her/his successor, the court should "discharge" her/him. The initial resignation should be "accepted" by the court and the new PR appointed, but the old PR isn't "discharged" until the Court is certain that all duties up to that point have been met.
You do need a new petition, order, and oath for the new PR, just like at the beginning, with appropriate changes to reflect acceptance of resignation of old PR, and some instructions that old PR shall account to the new PR and shall be discharged, say, "upon filing by the new PR of a Receipt acknowledging receipt of a satisfactory accounting and possession and control of all estate property formerly managed by the old PR." Or some such like that. If something goes wrong, the new PR can always petition the court for other relief.
New PR can get nonintervention powers also if available--see RCW 11.28.280<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true#11.28.280> &full=true#11.28.280>.
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> <mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Steve Waltar
Sent: Friday, April 22, 2016 1:38 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Releasing PR and appointing new one - proper forms and language
I have a case in which the existing PR listed in a Last Will and Testament (probate already begun) wants to resign. Also, the only other listed alternate PR ants to decline.
I have two questions: /requests for help.
First, Do I need a new petition and order and oath to get a new Administrative PR appointed? If so, would anyone share pleadings with me? I'm fine with the Declination by the alternate PR.
Second, what is the proper language to have when releasing the existing PR. In other words, should there be language to "release" the existing PR from fiduciary duties, give the courts blessing or hold harmless since fiduciary duties are terminated, and of course to cancel the existing Letters Testamentary?
Stephen M. Waltar, PS
Estate Planning Law
1750 - 112th Avenue NE, Suite C245
Bellevue, WA 98004
(425) 455-6788
www.waltar.com <http://www.waltar.com> <http://www.waltar.com/>
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