[WSBAPT] Succession/Lack of Probate Affidavit

Thu Sep 6 16:00:44 PDT 2018

Jacob,
There are two WACs in play, 202 and 303. 202 describes what is exempt from excise tax, while 303 addresses when an affidavit is required and when it is not (although the list is incomplete, thus the fudge factor for the Treasurers). So the cite you provide from 202(6) just addresses if there is an exemption, while 303 is supposed to address when the affidavit is required. Other than the reference to 303 in part 6 of 202, I don’t see anything in 202 that informs us about whether the REETA is required.

202 says:
(6) Exemptions and required documentation. A transfer of real property through a devise by will or inheritance is exempt from the real estate excise tax for the following types of transfers. Refer to WAC  <http://app.leg.wa.gov/wac/default.aspx?cite=458-61A-303> 458-61A-303 (Affidavit) to determine if a real estate excise tax affidavit is required to document the exempt transfers.

The good  news is that King does not require a REETA for a LOPA for now.

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 Jacob Menashe
Sent: Thursday, September 06, 2018 3:27 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Succession/Lack of Probate Affidavit

Thank you to everyone for your responses. 

Kailei, do you file a REETA? 

And Nicholas and all, I’ve read WAC 458-61A-202 differently -- that a REETA is required if you are recording a LOPA, because the beginning of section 6 starts, “If the property is transferred to one or more heirs by operation of law . . .” But I bet I’m off on this. Are folks out there who do record a LOPA not using a REETA? If not, maybe I just try to record again, this time without the REETA? 

But I do get the absurdity of all this – and the LOPA isn’t transferring anything. And in answer to Nicholas’s question, we record the LOPA because we’ve understood it’s helpful from the title company’s perspective down the line. 

Best, 

Jacob

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mike Winslow
Sent: Thursday, September 6, 2018 2:47 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Succession/Lack of Probate Affidavit

In Skagit, the Treasurer requires a REETA for processing a LOPA. The Auditor will not accept one for recording without the excise tax stamp.

The Treasurer takes the position that the LOPA is a transfer to an heir, which is  ridiculous, but nonetheless required to play in that sandbox.

WAC 458-61A-303
Affidavit.
(1) Introduction. This section explains when a real estate excise tax affidavit is required for the transfer of real property. See WAC 458-61A-101 <http://app.leg.wa.gov/wac/default.aspx?cite=458-61A-101>  for procedures pertaining to transfers and acquisitions of a controlling interest in an entity owning real property in the state of Washington.
(2) Affidavit required. In general, an affidavit must be filed when ownership or title to real property transfers as evidenced by conveyance, deed, grant, assignment, quitclaim, or any other document effectuating the transfer including, but not limited to, the following:

(g) Transfer to an heir in the settlement of an estate;

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 Nicholas Pleasants
Sent: Thursday, September 06, 2018 2:07 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] Succession/Lack of Probate Affidavit

Jacob – I’ve never filed a REETA in connection with recording the LOPA. You do not need to file a REETA since the LOPA is an information-only filing, not a conveyance. The WAC 458-61A-202(6)(i)(iii) exception is simply saying that a LOPA could be an exhibit to a REETA if there was a Quit Claim Deed filed, with the LOPA being used to explain why the Quit Claim Deed qualifies for an inheritance exemption from excise tax.
I’m curious what the goal in filing the REETA was, since it is not required. If you merely need to change who the taxpayer of record is, I believe you can do this by calling King County Treasurer and informing them of the change. If they will not accept the change in taxpayer name, perhaps then it can just be left alone until there is a subsequent purchaser outside the family.

Best,
Nick Pleasants

Nicholas Pleasants
James Pleasants, P.C.
2300 130th Ave NE, Suite A-101
Bellevue, WA 98005-1755
(425) 615-7070 tel.
(425) 497-0799 fax
nick at pleasantslaw.com
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From: nestor at pplsweb.com <nestor at pplsweb.com> 
Sent: Thursday, September 06, 2018 12:20 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] Succession/Lack of Probate Affidavit

Lack of Probate Affidavits are not conveyance documents and are used by title companies as an underwriting tool to issue title policies. Unless your selling or refinancing, I don’t see a need for recording one. 

Also, makes no sense to do a deed from “me to me”, since it is redundant, costs money and legally does not affect title.

Nestor Gorfinkel

Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mike Winslow
Sent: Thursday, September 6, 2018 10:22 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Succession/Lack of Probate Affidavit

I made a cross-post made to the a real estate List serve with your inquiry. 
We run into complaining from the Skagit Treasurer’s clerks about LOPA because they claim they aren’t conveyances (to which we agree). Skagit Treasurer clerks routinely tell people off the street that they need to do a Quit Claim Deed to themselves when a spouse dies, if there is no probate. This legal advice from the Treasurer’s clerks in Skagit unfortunately seems consistent with what appears to be happening in King County.

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 Jacob Menashe
Sent: Thursday, September 06, 2018 9:44 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Succession/Lack of Probate Affidavit

Hello all, 

I am looking for some thoughts about recording a succession/lack of probate affidavit. I am particularly concerned about the situation in King County, where I’ve seen a rejection that said in all caps (which I won’t do): 

Cannot use affidavit lack of probate as a conveyance document. Please review appropriate WAC codes available and resubmit a conveyance document i.e., conveyance language that specifically transfers property to the surviving spouse or heir. Thanks. 

We followed the specifics in excise tax WAC 458-61A-202 that specifically addresses lack of probate affidavits, that requires the death certificate be provided when recording – which we did. 

Can folks out there shed some light on this issue, both for King County and elsewhere, and perhaps suggest what we may need to do? 

Thanks!

Jacob

Jacob H. Menashe
Hickman Menashe, PS
4211 Alderwood Mall Blvd., Suite 202
Lynnwood, WA 98036
(425) 744-5658 phone
(425) 744-6078 fax
Satellite Office in Bellevue
www.hickmanmenashe.com

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