[WSBAPT] Lapse of specific bequest?

[Eric Nelsen]

Delivery of a deed is sufficient to make it effective (between the parties to the deed, anyway) even without recording, that's correct--but Seller's delivery of the deed to escrow is a conditional delivery, not absolute. The delivery isn't complete until escrow closes, because the Buyer doesn't have an unconditional right to receive the deed until escrow performs the deed-for-money swap.

Recording is not necessary to make a deed effective, but does raise a presumption of delivery. I don't have the case cite handy for that..

But, there's a new exception to the rule that delivery is sufficient and recording isn't necessary--a TOD deed is not considered valid unless it is recorded prior to the death of the Grantor. RCW 64.80.060(3)<https://app.leg.wa.gov/RCW/default.aspx?cite=64.80&full=true#64.80.060>. I haven't found explicit case law yet on what the effect is if the TOD isn't recorded prior to death, but given the statute's mandatory language, I'd say a TOD deed that is unrecorded at time of death of the Grantor is void and totally ineffective, regardless of delivery.

Jeremy's situation is also a little different because the decedent was contractually bound to convey title, so the Estate was obligated to honor the contract even after death, and had no power to convey the property to the heir free of that obligation.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Thursday, January 31, 2019 10:47 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Lapse of specific bequest?

Interesting.  I thought I researched this a few years ago and I found authority that said delivery of a deed is all that is required before death.  recording not necessary.

Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Ronald St. Hilaire<mailto:rfs at licbs.com>
Sent: Wednesday, January 30, 2019 5:58 PM
To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Lapse of specific bequest?

I litigated this issue several years ago and lost. The case law at the time held that unless the sale was completed prior to death, the gift did not lapse. The proceeds from the sale go to the beneficiary of the specific bequest.

There is case law on the issue that should not be difficult to find.
Ronald St. Hilaire
Liebler & St. Hilaire, P. S.
rfs at licbs.com<mailto:rfs at licbs.com>

On Jan 30, 2019, at 5:51 PM, "jeremy at basalt.legal<mailto:jeremy at basalt.legal>" <jeremy at basalt.legal<mailto:jeremy at basalt.legal>> wrote:
All,

I have a case where real property is the subject of a specific bequest in a will. Prior to death, decedent signed a purchase and sale agreement, deed, and all other documents necessary for closing and gave closing documents to title company to hold in escrow. Closing occurred a few days after date of death. Does anyone have thoughts on whether this bequest lapsed in this scenario?

Very truly yours,

Jeremy Scott Hyndman, Esq.
Managing Attorney

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6 1/2 N. 2nd Avenue, Suite 200
Walla Walla, WA 99362

T: 509.529.0630
F: 509.525.0630

www.basalt.legal<http://www.basalt.legal/>

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