[WSBAPT] lack of probate affidavit question

Fri Oct 13 09:32:02 PDT 2017

Most title people wouldn't disagree with your analysis.  Probate is the better alternative.  Title companies have used the lack of probate solution as an accommodation to people who, for whatever reason, (usually cost) don't want to probate the deceased's estate.
We do try to analyze the perceived risk of each situation; the surviving spouse usually being viewed as the safest situation.  My company has not had any loss claims directly related to our acceptance of a  lack of probate affidavit.
But you are correct when you say that a big loss claim by one of the insurers will make many of the insurers more reluctant to accept the affidavits.
It is easy to imagine a surviving spouse "forgetting" to mention a daughter of the deceased and a will that left the house to her.

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Friday, October 13, 2017 8:45 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] lack of probate affidavit question

This really goes against my understanding.  Those WACs only address exemption from the Excise Tax, not the transfer of title.  In the absence of a recorded Community Property Agreement or a recorded Transfer On Death Deed or a probated estate, a Lack of Probate Affidavit is only effective if a title company is willing to accept it in terms of insuring a sale of the property.  I sure hope Dwight Bickel or some other title person chimes in here.  While the widow can record the deed (or the Affidavit), the real test will come at a later time when a title company is asked to insure a sale of the property.  Now, if that sale is ten years down the road, an insurance company may feel it's a safe enough transaction to insure because of the passage of time but I doubt an insurance company will accept the Affidavit if the sale is within two years.

I have advised my clients that it is safest to probate the estate to ensure later title insurance on a sale of the property.  It has been my analysis that the title companies are currently willing to insure the transfer of title using a an Affidavit of Lack of Probate until they, as an industry, get burned by a lawsuit involving an Affidavit, the case will hit the conservative title insurance industry like a tsunami, and then their "acceptance" of an Affidavit will dissolve.  That may force the widow to go back and probate the estate.

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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 Mike Winslow
Sent: Thursday, October 12, 2017 5:34 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] lack of probate affidavit question

I have heard that the clerks in the tax assessor's offices tell people they need a deed. This happens is Skagit. Not necessary and not effective to transfer title. Redundant, waste of money, etc.
The Lack of Probate affidavit is sufficient. Record it per the WAC, then, wife just deeds to Trust. Use a warranty deed, not a quit claim deed, to maintain title insurance coverage from original acquisition.
See  WAC 458-61A-202. Look at 6(i) for the process applicable to your matter.

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

This message is from an attorney, so it's confidential. If you are not the intended recipient, it's too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sharon Rutberg
Sent: Thursday, October 12, 2017 3:31 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] lack of probate affidavit question

Hi, listmates --

Client's husband died without a will. The couple owned their home as community property and neither spouse has any children. We do not want to open estate administration for the husband (due to lack of need and privacy concerns). But we do want to transfer the wife's interest into her revocable living trust (created also for privacy concerns).

Do we need to record a document reflecting the transfer by intestate succession of the house to the wife as sole owner before she can quit claim the property into her RLT? If so, how so we do that? We have created a lack of probate affidavit attesting that surviving spouse is the rightful heir to the property. Can we record that (along with a death certificate and a REET affidavit)  to document the transfer? Do we need a deed instrument in addition?

I've heard varying things from different sources. Any clarification would be appreciated!

Best,

Sharon

Sharon C. Rutberg, Attorney at Law

Salmon Bay Law Group, PLLC

1734 NW Market St.

Seattle, WA 98107

206-735-3177, ext. 2

sharon at salmonbaylaw.com<mailto:sharon at salmonbaylaw.com>

Website: www.salmonbaylaw.com<http://www.salmonbaylaw.com>

Washington State Bar #47055

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