[WSBAPT] Division of property at a passing. Will vs. TOD

Mon Jul 15 12:54:02 PDT 2019

I am concerned the division wouldn’t occur if a trust is involved and not a probate.

Ken Luce

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Tom Westbrook
Sent: Monday, July 15, 2019 11:46 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Division of property at a passing. Will vs. TOD

The subdivision laws of RCW 58.17 do not apply to: Divisions made by testamentary provisions, or the laws of descent. RCW 58.17.040(3)

Don’t know if that applies to TOD Deed. I would argue it is not a testamentary document and is not part of the laws of decent, but have no knowledge about any case saying so. In my practice I would not try it.

I can say from experience as recent as 2 years that the testamentary subdivision if properly called out in a Last Will and Testament will be honored  by the planning departments of Pierce and Thurston Counties. It does not require a court order and is not done in probate; it has to be specifically done in the Will or Trust.

Sincerely,

Tom

Thomas J. Westbrook
Attorney at Law

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Eric Nelsen
Sent: Monday, July 15, 2019 10:36 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Division of property at a passing. Will vs. TOD

I know the division-by-inheritance is possible in theory, but as a practical matter the resultant lots still have to meet zoning and land use requirements to be buildable, so I have always assumed this theoretical right is basically useless.

That said, I don't think there is any case law yet on the question of whether or not a TOD deed can accomplish the same kind of non-conforming land subdivision. I would probably start by re-reading the case opinion that allowed the subdivision by Will to figure out the legal rationale, and see how closely it might apply to a TOD deed.

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> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of michael at westseattleattorney.com<mailto:michael at westseattleattorney.com>
Sent: Monday, July 15, 2019 10:23 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Division of property at a passing. Will vs. TOD

My old understanding is that the separation of powers idea gives a Court Order the same effect as an Administrative lot line adjustment but I have not seen anyone do it. I don't see how a deed in probate would rise to the level of an Order but I agree why not since the Deed references the probate no. etc

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-------- Original Message --------
Subject: [WSBAPT] Division of property at a passing. Will vs. TOD
From: Ken Luce <Ken.Luce at lucelawfirm.com<mailto:Ken.Luce at lucelawfirm.com>>
Date: Mon, July 15, 2019 9:59 am
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
If a person can designate property in a probate to avoid the line adjustment process can the same be done by tod deeds that contain the same legals to avoid probate?

Ken Luce

Kenyon E. Luce, Attorney
Luce & Associates, P.S.
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