[WSBAPT] Non-Probate Property Transfer

Thu Apr 22 12:10:22 PDT 2021

I’ve had luck transferring real property pursuant to the heirs wishes as opposed to the written Will by way of TEDRA agreement and an Order in the probate directing the transfer. Title companies have told me that if we have a signed order, they will almost always follow it.

Timothy C. Lehr
Attorney at Law

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From: J A Cyphers <jacyphers at gmail.com>
Sent: Thursday, April 22, 2021 8:01 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Non-Probate Property Transfer

I think you need to have a detailed discussion with a good title company.  The TEDRA agreement is a good idea. I wonder if the TEDRA agreement should allege that Mother held title as a constructive trust for nephew. Sounds like the facts fit that pattern.  And now that Mother has died, brother & sister as her heirs and nephew as the beneficiary of the constructive trust have all agreed that title should be in nephew.
Then take the draft of the agreed TEDRA agreement to a good title company and discuss what more they want to clear title.

I think that unless you are sure that you can prove up a lost will, you are an intestate situation.

Regardless of the fact that Mother revoked the Codicil, she did clearly lay out the facts for you.

Jackie Cyphers

On Thu, Apr 22, 2021 at 8:35 AM Amy Goertz <amyjgoertz at icloud.com<mailto:amyjgoertz at icloud.com>> wrote:
Thank you for your thoughts. However, the property is to go to the nephew and not the brother. I was thinking of filing a TEDRA, since all are in agreement, and then a Lack of Probate Affidavit, but the wording of the Affidavit statute seems to require that the parties be intestate heirs, and the nephew would not be a direct intestate heir.

Can you open an intestate estate when there is a lost Will? We would have the siblings decline to serve as PR, and consent to a non pro rata distribution to the nephew?

Sent from Amy's iPhone, which spells as it pleases and is not grammar correctly.

On Apr 22, 2021, at 6:28 AM, jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com> wrote:

Amy,

I assume brother and sister are mom’s only heirs?  I would open in intestate probate with son named as the administrator.  Sister can assign her interest in the estate to her brother.  Brother than deeds the house to himself.  I believe that would work.

Jeff Davis

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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 Amy Goertz
Sent: Wednesday, April 21, 2021 4:15 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Non-Probate Property Transfer

Hello, learned property folks -

Wondering how best to accomplish a property transfer based on the following:

2005 Decedent drafts Will. I do not have this Will.

2006 Decedent drafts Codicil. Codicil lays out fact pattern that states decedent let nephew use her name and good credit to buy a house in Spokane (she lived there with him) and that he paid for everything and upon her death, any interest she has in the house goes to nephew.

2007 Decedent moves out of state with daughter and drafts new Will that revokes Codicil. 2007 Will leaves all to son and daughter equally.

2020 Decedent dies due to corona virus. Original 2007 Will is now lost. There is no probate and no assets other than the house in Spokane in mom’s name for which nephew made all financial contributions.

Son and daughter are familiar with facts and willing to sign documents as necessary to transfer any interest to nephew (their cousin).

I would very much appreciate your thoughts and input as to the best and most streamlined mechanism to get the house into the nephew’s name.

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Amy

Amy J. Goertz, J.D.
Goertz & Lambrecht PLLC
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Jackie Cyphers
Jeannette A. Cyphers, Attorney at Law
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