[WSBAPT] Separate Real Property Commingled?

[G. Geoffrey Gibbs]

Others may weigh in but I see some issues or questions.

  1.  How is the property titled ?
  2.  Who is obligated on the “note” (H, W or both) ?
  3.  The payment of the mortgage from community funds may well raise at least an equitable lien on behalf of the marital community on the property even if the property is characterized as “separate” because of the date of acquisition.
  4.  A title company is not likely to clear the title at the time of sale without the matter going through probate.
  5.  Most importantly, who do you represent ?  Wife or son ?  I do not believe you can represent the interests of both.
Happy New Year to you and my other colleagues reading this.
G3

G. Geoffrey Gibbs | Anderson Hunter Law Firm
2707 Colby Avenue | Everett, WA  98201
Phone: (425) 252-5161 | Fax: (425) 258-3345
ggibbs at andersonhunterlaw.com<mailto:ggibbs at andersonhunterlaw.com> / www.andersonhunterlaw.com<http://www.andersonhunterlaw.com/>
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Christopher Small
Sent: Friday, December 30, 2016 2:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Separate Real Property Commingled?

Looking for some thoughts on this situation:

  *   A dies married to B for a little over a year, intestate. A has a son.
  *   Before marrying B, A bought some real estate.
  *   A and B live on said real estate during their marriage.
  *   Real estate has a note on it.
  *   Note is paid using commingled funds during the year of marriage.
  *   Little else in the estate other than the real estate.
First, I believe the mortgage payments don't change the character of the property from separate to community in any respect.

Second, I believe, if spouse and son can agree to sell the property and they can find a title company to agree, they could dispose of the home via Lack of Probate Affidavit.

My first question is, do you agree or disagree?

My second question is, do you see any glaring problems?

My third, and final question is, assume a wrinkle, that there are debts that can be paid with the proceeds of the sale of the home but nothing else (i.e. there is no other cash available); does this eliminate the ability to execute a Lack of Probate Affidavit? (I would think it does not as creditor's would be able to pursue the heirs no matter the character of the property distributed).

Thank you, and Happy New Year!

Cheers,

Christopher Small
CMS Law Firm LLC<http://cmslawfirm.com>
150 Lake St., Suite 227
Kirkland, WA 98033
206.659.1512
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