[WSBAPT] ethics/risk of delay of probate

[Eric Nelsen]

Abandonment of real property not allowed. Claim of title won't work because there's no color of title as to the whole; just his half-interest. His remedy as TIC is the equitable right of reimbursement against his fellow cotenants.

It is possible to take a tenant-in-common's interest as a multistep process: tenant-in-common incurs costs and gains the equitable right of reimbursement. Sue the other cotenants for reimbursement, and obtain a judgment against them. Try to collect on the judgment as usual, and hopefully get to the point of foreclosing on their tenant-in-common interest in the real property. Buy the interest at the execution auction.

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] On Behalf Of Roger Hawkes
Sent: Friday, January 29, 2016 1:28 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] ethics/risk of delay of probate

Any sort of abandonment or claim of title would assist??


Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com/>
206 367 5000
Fax is 206 367 4005

From: Craig Sjostrom [mailto:cdsjostrom at comcast.net]
Sent: Friday, January 29, 2016 12:59 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] ethics/risk of delay of probate

They would have to show an ouster, lasting the prescriptive period, not easy to do

Craig

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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 Roger Hawkes
Sent: Friday, January 29, 2016 12:57 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] ethics/risk of delay of probate

Can a tenant in common gain adverse possession against co tenant by occupying the whole of the property, changing locks etc.?


Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com/>
206 367 5000
Fax is 206 367 4005

From: Eric Nelsen [mailto:Eric at sayrelawoffices.com]
Sent: Friday, January 29, 2016 11:21 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] ethics/risk of delay of probate

I think that PC is better off with no probate. As an intestate heir he has an immediate right to possession as tenants in common with his brother. RCW 11.04.250<http://app.leg.wa.gov/RCW/default.aspx?cite=11.04.250>. As a tenant in common he has zero duty to try to find his brother. As PR he would have a duty to search.

If there is no mortgage and he keeps the taxes current, then he can pretty much live in the house rent-free as long as he wants. He should definitely keep track of all his expenses related to maintenance, repair, property taxes, homeowner insurance, etc., because he has a right to reimbursement for half of those expenses from his brother. Keep in mind, though, that I think the three-year statute of limitations applies to the equitable right for reimbursement, so that does not accumulate indefinitely. Expenses more than three years old would drop out.

His sticking point is if he ends up having some difficulty because he is not on title. For example, I am not sure how easily he will be able to maintain homeowner insurance. Also, concern about decedent's debts, but most of that goes away two years after date of death.

I've never done an absentee estate under Ch. 11.80 RCW<http://app.leg.wa.gov/RCW/default.aspx?cite=11.80&full=true>, but it might be relevant at some point. If he is his brother's sole heir, at some point he might gain title that way.

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 Krista MacLaren
Sent: Friday, January 29, 2016 6:20 AM
To: wsba probate & trust
Subject: [WSBAPT] ethics/risk of delay of probate

Hi Listmates,

I recently met with a PC who is one of two brothers, only heirs of their recently deceased mother’s estate.  The PC lives in mom’s house, and has for his whole life, as far as I can tell - he is 60 years old.  He pays taxes and maintenance, no rent.  The brother disappeared about 4 years ago, and PC says he has no idea where he may be but presumed alive.  PC naturally wants to stay in mom’s house as long as possible, but realizes the house would need to be sold to split the estate with brother.

I would like to advise PC on the risks and benefits of doing nothing until brother shows up, versus opening probate and letting it stall out until brother shows up, versus opening probate and affirmatively searching for brother (which would probably force PC out of house sooner).

I was initially inclined to open the probate and conduct at least a cheap online person search for brother, but since PC actually wants to delay, is it better not to get involved at all?  To tell him to file the Will only and worry about a probate later? Ethically, is it different if I am advising PC as a beneficiary only, as opposed to a potential PR?  Brother is actually named as PR in the Will, PC is alternate, but PC presumed he would serve as PR.

Thank you for your thoughts!


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 me.com<mailto:kjm.inc at me.com>

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