[WSBAPT] LOPA

[Marcus Fry]

Diane:
With regard to LOPAs, I try to explain to the clients that this document does not actually convey title.  Rather, the document is a sworn statement concerning the facts in order for a title company to rely upon for vesting determination in accordance with RCW 11.04.250.  I further explain that the title insurance companies are in the "insurance" industry, and therefore,  if you don't convey title formally via probate, but rather rely on a sworn statement, it is all about risk tolerance of the title company.  The title company could certainly be okay with the affidavit now, but change its position on the same affidavit 15 years from now when one goes to sell.  I recommend that in addition to the LOPA, if a client goes this route, they also obtain a policy of title insurance to confirm vesting.  I also try to provide my analysis in the risk assessment, evaluating these factors:

*         Are there children of the decedent not related to the spouse?

*         Is there a will in existence?  If so, does it leave everything to the spouse?

*         Is there a CPA?  If yes, is it a 3 prong CPA?

*         Is the client's plan to sell now or well into the future?

*         Are there children of the decedent and spouse that do not get along with the surviving spouse?

I can provide war stories, but really it comes down to client making an informed decision weighing the costs vs. benefits.  I don't want to scare my client into a decision.  Rather I want them to understand why they are making the choice they are making and the consequences of the chosen path.  Of course, there may be no choice for the client if problems are already present, such as a child from former relationship asserting real estate is separate property.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Tom Westbrook
Sent: Friday, June 18, 2021 4:39 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] LOPA

Is there a community property agreement?
Regards, Tom Westbrook
Sent from my Verizon, Samsung Galaxy smartphone
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________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Diane J. Kiepe <DJKiepe at depdslaw.com>
Sent: Friday, June 18, 2021 4:08:57 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] LOPA


Hello Colleagues,



I have a surviving spouse who insists that he doesn't need to do a probate (and has heard of the Lack of Probate affidavit).  I have always said a probate is required to transfer title to the survivor's name.  I realize that the LOPA is used by some in counties I don't regularly practice and I certainly don't mind following the process but my understanding is that it may result in problems upon a later sale and our refinance - also I have read that title insurance may be more costly down the road.  When I have explained that in the past it is always excepted but in this case I may have to share some real life stories.  It would be great if any of you would share with me your experiences (good and bad alike).



Thanks in advance -



Diane J. Kiepe



Diane J. Kiepe

Douglas Eden

717 W. Sprague Ave.

Suite 1500

Spokane, WA  99201

djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>

509-455-5300


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