[WSBAPT] Affidavit of Lack of Probate - Dealing with Separate Real Property

[John McCrady]

In the marriage context, there is the strong presumption that the property purchased as "husband and wife" is community property, and under the laws of intestacy a deceased spouse's interest in community property passes to the surviving spouse.  So we are relying on the lack of probate affidavit to determine who benefits from the automatic vesting of title under the laws of intestacy.
In an alleged CIR we don't have any such presumption, and until the will is probated it has no determinative value.  So in your scenario we would require the probate of the will to pass the title to the partner.

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 Jeff Davis
Sent: Thursday, March 05, 2020 3:54 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Affidavit of Lack of Probate - Dealing with Separate Real Property

Listmates:

Client was in a long term (28) year committed relationship.  Husband (for lack of a better term) died.  His Last Will & Testament leaves everything to the surviving Partner ("Wife.")  House is only in Husband's name as his separate property.  Recently we have seen title companies accepting recorded Affidavits of Lack of Probate ("ALOP") to remove the deceased spouse's name from title, which was taken as "Husband and Wife."  Obviously, in the husband and wife title setting, the surviving spouse already has a deeded interest in the property.  Here the surviving partner has no interest in the property but for the Will.

Would a "ALOP" that attaches the Will work or is probate an absolute necessity.

Jeff Davis



W. Jeff Davis, Esq.
BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129
Fax No.: (360) 683.1258
email: info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>
www.bellanddavispllc.com<https://r.xdref.com/?id=02602MQX035759&from=wsbapt-bounces@lists.wsbarppt.com&to=j.mccrady@pstitle.com&url=http://www.bellanddavispllc.com/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129




-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200305/6fa81f1e/attachment.html>