[WSBAPT] Separate Property of deceased spouse/minor

Thu Aug 11 16:57:43 PDT 2016

I agree with Maureen's cite of code and would only add that upon transfer
through the probate you need to notify the lender of the transfer.  Cite
the appropriate code that the due-on-sale clause is not an option and I
send a certified letter to them.  They will respond with paperwork so
inform your client to expect a response but to bring it to you and not to
begin filling it out.

Lastly, be sure to look at the mortgage contract!  It will give you
guidance to notification and any other potential requirements when a
mortgagee dies.

Paul H. Grant - JD, LL.M

Planning with Purpose, Inc
Lynnwood, WA 98036
425-939-9948
www.planningwithpurposeinc.com

Estate Planning. Business Planning. Wealth Succession.

On Wed, Aug 10, 2016 at 9:44 AM, Maureen Wickert <wickertlaw at comcast.net>
wrote:

> The deed to the surviving spouse is a conveyance of a transfer. So 12
> U.S. Code § 1701j–3(d)(6) applies to such transfer as exempt from the
> mortgage’s due on sale clause.
>
>
>
> Very truly yours,
>
> Maureen A. Wickert, Attorney at Law
>
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> *From:* Krista MacLaren [mailto:kjm.inc at mac.com]
> *Sent:* August 10, 2016 9:39
> *To:* Heather deVrieze <heatherd at westseattlelaw.com>; Maureen Wickert <
> wickertlaw at comcast.net>
> *Cc:* Krista J. MacLaren <kjm.inc at mac.com>; wsba probate & trust <
> wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Separate Property of deceased spouse/minor
>
>
>
> Thank you both so much, your comments are very helpful.  Could you
> possibly explain whether a deed and the financing need to match?  I am
> confused by whether, so long as the rights of the minor are addressed, it
> is appropriate to deed the house to the surviving spouse while it is
> financed in husband's name?
>
>
>
> Krista
>
> On Aug 10, 2016, at 9:04 AM, Heather deVrieze <heatherd at westseattlelaw.com>
> wrote:
>
>
>
> I agree with Maureen’s comments, but would add that a GAL is likely
> required, and would give mother the opportunity to take a stronger position
> regarding community vs. separate property and get her plan for the funds
> (UTMA may very well be acceptable depending on the amount of money). A
> family support award cannot be made without the appointment of a GAL for a
> minor. Look at 11.76.080 (2). A GAL is required for an order granting
> nonintervention powers when there are minors involved, unless the surviving
> spouse is the sole beneficiary under the terms of a will and the minor is
> the child of both the deceased and the surviving spouse.
>
>
>
> As a practical matter, unless the child was nearly 18, delay probably
> doesn’t simplify, but complicates the situation. I would look at why the
> property and mortgage was in deceased name alone, how were payments made,
> was it commingled such that it should now be characterized as CP? If there
> is only CP, no distribution to minor, GAL can sign off on characterization
> of property and you can leave the surviving spouse with a clean slate.
>
>
>
> Heather
>
>
>
>
>
> Heather S. de Vrieze
> *Attorney-at-Law*
>
> *<image002.jpg>*
>
> 3909 California Avenue SW
>
> Seattle, WA 98116-3705
>
> (206)938-5500
>
> heatherd at westseattlelaw.com
>
> www.westseattlelaw.com
>
>
>
> *Click here to connect with de Vrieze | Carney on Facebook: *
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> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.
> wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Krista
> MacLaren
> *Sent:* Tuesday, August 09, 2016 9:16 PM
> *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
>
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