[WSBAPT] Separate Real Property Commingled?

[Jane Bitz]

The interest of the spouse is one-half of the separate property by intestacy.

There is really no community property interest under your facts. Read Estate of Borghi and cases that site this decision. Unless the husband signed a Quit Claim Deed to create Community Property with his wife, the property remains his separate property. If community funds made payments on the note that were in excess of what would be reasonable rental value or major, permanent improvements to the property (major remodel, etc.) with community funds, then no “equitable lien” exists, it is all separate property.

His son and the wife split sale proceeds 50/50.

Jane Bitz.

Jane G Bitz
Of Counsel
Wolff, Hislop & Crockett, PLLC
12209 E Mission, Suite 5
Spokane Valley WA 99206-4824
(509) 927-9700; FAX (509) 777-1800
jbitz at whc-attorneys.com<mailto:jane at jbitzlaw.com>


From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Friday, December 30, 2016 3:01 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Separate Real Property Commingled?

If spouse and son agree on what to do, they can accomplish just about any scenario if a title company agrees.  If spouse disagrees or wants more, he or she can make a mess and claim either a lien or an equitable claim on the property.  Did they live together before marriage?  Was their an agreement evidenced by any document or behavior re sharing of the property?  Clearly paying the note from commingled funds looks like shared ownership and shared debt.  Much more to discern before reaching any conclusion.

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

From: Christopher Small [mailto:chris at cmslawfirm.com]
Sent: Friday, December 30, 2016 2:02 PM
To: WSBA Probate & Trust Listserv
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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