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

[Eric Nelsen]

In theory, yes, but I read Jeff's scenario as indicating that the house was genuinely the separate property of the decedent. If it is separate property, then the court in a CIR case has no jurisdiction to affect its ownership. The court in a CIR case only has jurisdiction over property that is "community-like," as in "would be considered community property under the rules of characterization if the parties had been married." The court in the CIR case divides "community-like" property between the parties in a fair and equitable fashion, but leaves separate property alone.

I probably should have specified that in my earlier answer, that I was assuming the house was genuinely separate property and there was no possible community-like interest. Separate property of a CIR partner can only pass to the other partner via Will, as the surviving partner has no legal inheritance rights. Community-like property is divided between the decedent and surviving partner as may be fair and equitable, which is not inheritance but rather a determination as to what belongs to the estate and what belongs to the survivor.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: Friday, March 6, 2020 1:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>; jeff at bellanddavispllc.com
Subject: Re: [WSBAPT] Affidavit of Lack of Probate - Dealing with Separate Real Property

Actually, CIR litigation could result in a court order granting sole ownership to one or the other; correct?

Roger Hawkes, WSBA # 5173
Hawkes Law Firm and Sultan Lawyers
19944 Ballinger Way NE, Shoreline, WA 98155 and
423 Main, Sultan, WA 98294
206 367 5000
360 799 6438

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: Thursday, March 5, 2020 4:27 PM
To: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>; WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Affidavit of Lack of Probate - Dealing with Separate Real Property

Your mileage may vary among title companies, but if I were the underwriter I would not allow an ALOP for a committed intimate relationship (CIR) couple where the interest passed entirely by Will. I would require probate of the Will.

In a genuine community property context, multiple different streams of law can operate to give the surviving spouse the house, even if it is solely in the other spouse's name. But with a CIR relationship, the only legal method of transfer hinges on validity of the Will. So I would require it to be proved in court as valid.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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 Jeff Davis
Sent: Thursday, March 5, 2020 3:54 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto: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<http://www.bellanddavispllc.com/>

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