[WSBAPT] Separate Property of deceased spouse/minor

[Maureen Wickert]

Krista,

 

You may want to take a deeper review and recheck case law concerning the character of separate property of a spouse such as: how long were H&W married, how did they manage their finances, what contributions W made to the family home, did H&W actions commingled enough community property with his separate property to change a property’s original character?

 

You also want to look at  <https://en.wikipedia.org/wiki/Garn%E2%80%93St._Germain_Depository_Institutions_Act> Garn–St. Germain Depository Institutions Act where the H’s mortgagee cannot accelerate his note if his spouse inherits the underlying property. So long as she continues to make payments, the mortgage stays in place and she does not have to refinance. Although, the bank being what they are may push for a refinance. 

 

 <https://www.law.cornell.edu/uscode/text/12/1701j-3> https://www.law.cornell.edu/uscode/text/12/1701j-3   

 

Very truly yours,

Maureen A. Wickert, Attorney at Law



14900 Interurban Avenue South, Suite 255

        Tukwila, WA 98168

       Phone: 206-859-5502

         Fax: 206-260-9005

      <http://www.wickertlawoffice.com/> www.wickertlawoffice.com

        <mailto:wickertlaw at comcast.net> wickertlaw at comcast.net

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Krista MacLaren
Sent: August 9, 2016 21:16
To: wsba probate & trust <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Separate Property of deceased spouse/minor

 

Listmates,

 

Decedent H died without a will.  W and 5 y.o. child survive.   No prior marriages or other children for either spouse.  The house they live(d) in was decedent’s separate property, and there is a mortgage on it in H’s name.  I am wondering several things: 1)  Does GAL have to be appointed for minor child when child’s mother will serve as PR? 2) If W wants to remain in the house, what is her best course of action?  She works, but I don’t know if she would independently qualify for mortgage.  Should she first see if she could obtain a loan to finance the house herself, and if she can't, just try to keep making payments without notifying loan company?  And what would be appropriate as to the deed from the estate?  Can she deed house to herself a) when the loan is not in her name, and b) when minor child is entitled to a share of decedent’s estate (there may be other assets to pay share to minor child).  3) Can share for minor child be placed in an UTMA or must a guardianship be set up?  4) Would family support claim change any of this?

 

Since other assets are POD accounts, it may not be necessary to have a probate at all if she is just continuing to pay mortgage without transferring ownership, but that doesn’t seem very secure for her.

 

I appreciate any guidance.

 

Thank you,

 

Krista

 

Krista J. MacLaren
Attorney at Law
Northgate Executive Center II
9725 3rd Ave NE, Suite 600
Seattle, WA 98115
(206)523-6116
kjm.inc at mac.com <mailto:kjm.inc at mac.com> 

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