[WSBAPT] Question regarding transferring real property (please see fact pattern)

[Eric Nelsen]

I think this is pretty fact-dependent, but re-phrasing the facts you have provided to be sure I have them right:

There was a pending contract between X and Y at the time of X's death, for X to sell Property to Y. The deal was recorded.
Jack X does a small estate affidavit, but as you say, that has no effect on real property in any case. I take it that Jack X is the sole heir of X's estate?
Y pays Jack X the amount owing under the contract between X and Y.
Jack X skips town with the money and doesn't convey the property.

A few thoughts, not necessarily complete:

  *   Y can enforce the contract against X's estate. RCW 4.20.046(1)<https://app.leg.wa.gov/RCW/default.aspx?cite=4.20.046>; Ch. 11.60 RCW<https://app.leg.wa.gov/RCW/default.aspx?cite=11.60&full=true>.
  *   Jack X, if sole heir, takes the real property interest immediately upon death, by operation of law. RCW 11.04.250<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.250>. But per that same statute, his interest is subject to divestment by the Personal Representative of the Estate. So if you start the probate, the PR immediately has the superior title to the property over Jack X.
  *   Don't ask for Jack X to be appointed as PR-if there is an alternative nominee in the Will, maybe ask for that person, and allege that Jack X has disappeared and can't be located. If there is no alternative nominee in the Will, or if they are all unavailable or can't be found, then ask for Y to be appointed as "Administrator with Will Annexed" per RCW 11.28.010<https://app.leg.wa.gov/RCW/default.aspx?cite=11.28&full=true>. See also RCW 11.28.040, 11.28.070, 11.28.131.
  *   Do you need to enforce any other provisions of the contract? Seller to purchase title insurance, pro-ration of property taxes, utilities, etc., sharing of escrow costs? If the Estate has no money, the PR will likely have to chase down Jack X and get him to cough up the funds needed to pay Estate expenses. Regardless, Y is likely going to have to front all the probate expenses in order to get this done unless there are other identifiable assets of the Estate.
  *   If you have a PR appointed, that PR is stuck with all PR duties; there is no short-cutting the probate process. That means thinking about publishing notice to creditors, preparing an Inventory and Appraisement, decedent's final tax return, estate's fiduciary income tax return to report the sale of the property, etc., etc. Again, all those expenses will likely come out of Y's pocket, subject to hopefully finding X and extracting reimbursement from him later.
  *   Y probably wants a PR deed for the property anyway, compared to some deed from Jack X that a title company probably wouldn't agree is sufficient. And I would think Y would want title insurance.
  *   The PR will have a cause of action against Jack X for all costs of administration. The money Jack X received is essentially proceeds from sale that the Estate should have received and been able to use for administrative expenses and the decedent's debts. I think that Y also has a cause of action against Jack X under multiple theories, possibly involving fraud depending on the facts, possibly as someone who has voluntarily assumed the duties under the contract between X and Y.
  *   Diane Kiepe suggested it might be better to file a TEDRA-I think she's right that a TEDRA could do this by itself, but in practice I have often done both by getting my client appointed as PR and then the PR files a separate TEDRA action. A PR has significant extra power and leverage compared to a "mere" party to a TEDRA. The PR can't use their power to favor themselves of course, but if the contract between X and Y is binding and enforceable, the PR need do no more than follow the law to get Y everything Y is entitled to.

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>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of John Yip
Sent: Monday, March 30, 2020 2:56 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Question regarding transferring real property (please see fact pattern)

Assume the following hypothetical:

* Mr. X contracted with Mr. Y to sell real property ("Property") to Mr. Y upon Mr. Y's payment of a certain sum.  Assume there is a recorded document to this effect.

* Mr. X passed away without transferring the property via Deed.

* Mr. X's child (and apparent heir), "Jack X," submits an Affidavit of Non-Probate (i.e. a small estate affidavit) for all of Mr. X's assets, including ostensibly the Property.  (However, small estate affidavits do not apply to real property per my research of RCW 11.62)

* Mr. Y subsequently pays the agreed upon sum to Jack X, as the claiming successor to Mr. X.

* Jack X fails to convey the Property to Mr. Y.

* No probate has ever been started for Mr. X, though his will was filed of record.

* Also, Jack X is incommunicado and his present whereabouts are unknown.  Prior service attempts on him have failed.

The goal here is to effectuate the conveyance of the Property from Mr. X to Mr. Y, since Mr. Y already paid for the property.  My plan, based on my research, is to start a probate on the Will of Mr. X, with Jack X as the PR per Mr. X's Will.  Then, we will have to serve Jack X as PR of the Estate of Mr. X via publication or otherwise.  If Jack X does not respond, then we can move for a default judgment.

Your thoughts on my plan?  I just want to get a second opinion on my plan, especially in light of the somewhat unusual situation, and make sure I am not missing something key or a more expeditious way to achieve the goal.  Thanks.

John
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