[WSBAPT] lack of probate affidavit question

Fri Oct 13 14:30:50 PDT 2017

Title vesting and risk analysis about obtaining title insurance are
different issues; my post addressed your comment about title vesting. You
stated: "Those WACs only address exemption from the Excise Tax, not the
transfer of title."  Thus the citations provided.

One is a legal issue; the other a business decision and for the lawyer, I
guess a matter of their comfort level with the future risk a title insurer
might reject a request to insure.

In the instant case, where there is going to be a transfer to an RLT, it
would be pretty simple to confirm the insurer will cover the transfer to
trust with a supplemental on the original title policy. In other situations,
perhaps the title insurance issue cannot be confirmed immediately. Sharon's
path on this, as stated in her last post, works.

Thus far, the competition in the title industry has worked in our favor, and
I have never seen a title company refuse coverage on property owned by
husband and wife if the LOP affidavit could be supplied. This could change,
and for me, that is a risk I will let my clients decide to undertake or not.

I find it difficult to tell my clients that they must do a probate to
transfer title, because that is not the status of the law. But your comments
prompt me to be careful to make sure my clients understand the risk of using
the LOP affidavit from the stand point of later ability to insure a sale.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. 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] On Behalf Of Paul Neumiller
Sent: Friday, October 13, 2017 10:19 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] lack of probate affidavit question

Yes, I get that but trying to get a title company to accept that is another
thing.  I have had title companies tell me that they "don't know if there
are children from a previous marriage" and they "don't know if the house was
completely community property and not separate property."  It is a
self-serving statement for the surviving spouse or heirs to say to a title
company "Hey, let me sell the house and get all of the proceeds because
state law says I get it."  In other words, I have been told by title
companies that, yes, that RCW works but the title company wants a court to
establish who is to receive the house.  

Paul Neumiller

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mike Winslow
Sent: Friday, October 13, 2017 9:18 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] lack of probate affidavit question

Title vests in the surviving spouse if a couple takes title as "husband and
wife", absent a will that disposes of the one half interest of the decedent
otherwise.
Further, title vests in the heirs at law without the requirement of probate
under:
RCW 11.04.250
When real estate vests-Rights of heirs.
When a person dies seized of lands, tenements or hereditaments, or any right
thereto or entitled to any interest therein in fee or for the life of
another, his or her title shall vest immediately in his or her heirs or
devisees, subject to his or her debts, family allowance, expenses of
administration, and any other charges for which such real estate is liable
under existing laws. No administration of the estate of such decedent, and
no decree of distribution or other finding or order of any court shall be
necessary in any case to vest such title in the heirs or devisees, but the
same shall vest in the heirs or devisees instantly upon the death of such
decedent: PROVIDED, That no person shall be deemed a devisee until the will
has been probated. The title and right to possession of such lands,
tenements, or hereditaments so vested in such heirs or devisees, together
with the rents, issues, and profits thereof, shall be good and valid against
all persons claiming adversely to the claims of any such heirs, or devisees,
excepting only the personal representative when appointed, and persons
lawfully claiming under such personal representative; and any one or more of
such heirs or devisees, or their grantees, jointly or severally, may sue for
and recover their respective shares or interests in any such lands,
tenements, or hereditaments and the rents, issues, and profits thereof,
whether letters testamentary or of administration be granted or not, from
any person except the personal representative and those lawfully claiming
under such personal representative.

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

cid:image004.jpg at 01D3440A.0675C6E0

From:  <mailto:wsbapt-bounces at lists.wsbarppt.com>
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' < <mailto:wsbapt at lists.wsbarppt.com>
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.  <mailto:Mike at winslegal.com> 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:  <mailto:wsbapt-bounces at lists.wsbarppt.com>
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:  <mailto:wsbapt at lists.wsbarppt.com> 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
 <mailto:sharon at salmonbaylaw.com> sharon at salmonbaylaw.com 
Website:  <http://www.salmonbaylaw.com> www.salmonbaylaw.com
Washington State Bar #47055

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