[WSBAPT] Possible adverse possession claim?

Mon Aug 29 10:44:41 PDT 2016

In addition to Eric’s comments, consider that the ownership is Tenancy in Common, as between the two children. See  RCW 11.04.250

When real estate vests—Rights of heirs.
When a person dies seized of lands, tenements or hereditaments, or any right thereto or entitled to any interest therein in fee or for the life of another, his or her title shall vest immediately in his or her heirs or devisees, subject to his or her debts, family allowance, expenses of administration, and any other charges for which such real estate is liable under existing laws. No administration of the estate of such decedent, and no decree of distribution or other finding or order of any court shall be necessary in any case to vest such title in the heirs or devisees, but the same shall vest in the heirs or devisees instantly upon the death of such decedent: PROVIDED, That no person shall be deemed a devisee until the will has been probated. The title and right to possession of such lands, tenements, or hereditaments so vested in such heirs or devisees, together with the rents, issues, and profits thereof, shall be good and valid against all persons claiming adversely to the claims of any such heirs, or devisees, excepting only the personal representative when appointed, and persons lawfully claiming under such personal representative; and any one or more of such heirs or devisees, or their grantees, jointly or severally, may sue for and recover their respective shares or interests in any such lands, tenements, or hereditaments and the rents, issues, and profits thereof, whether letters testamentary or of administration be granted or not, from any person except the personal representative and those lawfully claiming under such personal representative.
[ 2010 c 8 § 2005; <http://lawfilesext.leg.wa.gov/biennium/2009-10/Pdf/Bills/Session%20Laws/Senate/6239-S.SL.pdf?cite=2010%20c%208%20%C2%A7%202005;>  1965 c 145 § 11.04.250. <http://leg.wa.gov/CodeReviser/documents/sessionlaw/1965c145.pdf?cite=1965%20c%20145%20%C2%A7%2011.04.250.>  Prior: 1895 c 105 § 1; <http://leg.wa.gov/CodeReviser/documents/sessionlaw/1895c105.pdf?cite=1895%20c%20105%20%C2%A7%201;>  RRS § 1366.]

Under the rules regarding Tenancy in Common, one co-tenant may not adversely possess against another co-tenant, as they both have equal right of possession. Thus, the occupancy by the sister who paid taxes is not adverse to the other sibling.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Setareh Mahmoodi
Sent: Monday, August 22, 2016 1:34 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Possible adverse possession claim?

Thank you both! 

That's what I thought, she insisted that another attorney told her she had an AP claim and I wanted to make sure I am not missing anything. 

Thanks, 

Setareh 

On Mon, Aug 22, 2016 at 12:38 PM, Eric Nelsen <Eric at sayrelawoffices.com> wrote:
No possible AP claim because (1) not exclusive possession for ten years, or (2) has no "color of title" to get in under the seven-year rule. Inheritance of a one-half interest by intestacy is not color of title to the whole.

The disabled child inherited a half share, same as the other. Disabled child needs a representative, probably a guardian. Probate won't solve the problem either because the PR has a limited duty to make sure an heir is able to receive her/his inheritance--and with a severe mental disability, the PR will need to make sure the distributed interest is placed in responsible hands.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Setareh Mahmoodi
Sent: Monday, August 22, 2016 12:22 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Possible adverse possession claim?

Hello, 

I just wanted to brainstorm to see what remedies or options other than AP, if any, are available under the scenario below: 

PC's mother passed away intestate about eight years ago, her only major asset was her home. She was survived by her two children, one of which is severely mentally disabled. The other daughter paid the property taxes every year and now wants to transfer title to herself. There was never a probate opened. 

I feel that the other heir's disability is an issue here for AP. The other option I see is to open a probate and probate normally, however, I feel that PC might want to avoid that. I don't feel right about it. Any comments or suggestions are greatly appreciated. 

-- 
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Best regards, 

Setareh Mahmoodi 
Attorney at Law 
18222 104th Ave NE, Suite 103
Bothell, WA 98011
Phone: 425-806-1500
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-- 
Please always call 206-683-1006 or email before dropping by the office as I could be in court or meetings. Thanks! 
Best regards, 

Setareh Mahmoodi 
Attorney at Law 
18222 104th Ave NE, Suite 103
Bothell, WA 98011
Phone: 425-806-1500
Cell: 206-683-1006
Fax: 425-489-4142 (Please email documents if at all possible) 
Website: http://www.lawofficesofsm.com/

CONFIDENTIALITY NOTICE: This email message and any attachments is a transmission from the law firm and is intended for the recipient only.  It may contain information that is confidential and legally protected by the attorney-client, work product and/or other privileges.  If you are not the designated or intended recipient, please destroy the message without disclosing any of its contents and notify us immediately by reply email or by calling (425) 806-1500.
Pursuant to 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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