[WSBAPT] Separate Real Property Commingled?

[Christopher Small]

Thank you all for your responses!

Cheers,

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

On Tue, Jan 3, 2017 at 11:16 AM, Jane Bitz <jbitz at whc-attorneys.com> wrote:

> 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 <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
>
> 206 367 5000 <(206)%20367-5000> voice
>
> 206 367 4005 <(206)%20367-4005>  fax
>
>
>
> *From:* Christopher Small [mailto:chris at cmslawfirm.com
> <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 <(206)%20659-1512>
>
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