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

Mon Mar 30 16:07:00 PDT 2020

Depending on the details of this "assumed" recorded document, it may be
possible to allege performance and fulfillment of a "real estate contract"
and file a quiet title action against Jack X and the heirs at law of the
decedent. See the court cases under RCW 61.16.030. I think this is likely to
be more simple than filing a probate.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, March 30, 2020 3:39 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Question regarding transferring real property (please
see fact pattern)

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

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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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