[WSBAPT] Removing deceased spouse from deed

Tue Sep 28 08:44:16 PDT 2021

Thank you Sarah  - excellent point – always check internet citations 😉  My bad

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

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Sarah McCarthy
Sent: Tuesday, September 28, 2021 8:39 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Removing deceased spouse from deed

One note, that 2005 WAC section that Diane cited in the quoted passage from Washington Probate, WAC 458-61A-202(7), is now out of date.

The current WAC at 458-61A-202(6)(i), effective in 2017, does specifically permit a lack of probate affidavit as documentation to the treasurer supporting an excise tax exemption.

(i) Nonprobated will or operation of law. If the property is transferred to one or more heirs by operation of law, or transferred under a will that has not been probated, but absent the documentation described in (a), (b), (e), (f), or (g) of this subsection, a certified copy of the death certificate and a signed lack of probate affidavit affirming that the affiant or affiants are the sole and rightful heirs to the property are required. When the property is transferred and the decedent-transferor also inherited the property from his or her spouse or domestic partner, but never transferred title to the property into the decedent-transferor's name, the transferee(s) must provide:
(i) A certified copy of the death certificate for the decedent-transferor;
(ii) A certified copy of the death certificate for the spouse or domestic partner from whom the decedent-transferor inherited the real property; and
(iii) A lack of probate affidavit affirming that the affiant or affiants are the rightful heirs to the property.

Sarah O’Farrell McCarthy

(Pronouns: she / her)
Attorney | Kelly, Arndt & Walker, Attorneys at Law, PLLP
P.O. Box 290 | 6443 Harding Avenue | Clinton, WA  98236

(Located on Whidbey Island, Island County, Washington)
Phone: (360) 341-1515 | Fax: (360) 341-3272
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On Tue, Sep 28, 2021 at 8:13 AM Diane J. Kiepe <DJKiepe at depdslaw.com<mailto:DJKiepe at depdslaw.com>> wrote:
Jerry,

I have had at least one person have success at filing a Lack of Probate affidavit and then securing a loan on the property.   Unfortunately, his lack of probate affidavit was false and now the estate is in trouble.  With that being said, here is what the wa-probate  has to say (and I really like this site).

Good Luck.

A probate proceeding may be necessary for other reasons besides transferring title to real property, for example, the estate consists of more than $60,000 of personal property.  But in many cases:
The only reason necessitating a probate is to clear title to this “errant” real property.
Practically speaking, what often happens is that an unmarried, elderly parent dies having owned “the family home” for decades but little else except perhaps some joint tenancy or POD/TOD bank or securities accounts that the parent has put in his/her name along with his/her adult children.  The parent dies, and the children keep the home and succeed to the accounts/securities.  Sooner or later:

  *   They enter into an agreement to sell the home,
  *   Their broker or the buyer contacts a title insurance company to arrange for the purchase of title insurance required by the buyer, and
  *   The title company reports back that title to the property remains in the name of the parent, as no probate was ever begun, and as a consequence:
The property lacks what is known as “clear title,” so:
Title to the property is uninsurable,
and the buyer, if he/she remains willing to buy the property at all,
is willing to buy it not for full market value
but only at a substantially discounted price.
Another popular circumstance is upon the death of the first to die of a married couple owning a home and relatively little else, and the surviving spouse wants to:

  *   Sell the home to purchase a smaller home or condominium, or
  *   Transfer the home to a Living Trust created following the deceased spouse’s recent death in order to avoid probate on the home at the surviving spouse’s eventual death.
What to do?  Enter the “Lack of Probate Affidavit.”  A title insurance company may be willing to issue (now or later) a title insurance policy on real property held in a Decedent’s name without a probate upon its receipt of what title insurance companies call a “Lack of Probate” Affidavit, a practical, business (as opposed to a legal) solution to passing real property at death “outside of probate.”  [Not a “legal” solution in the sense that there is no Washington law that expressly authorizes it, not that it is “illegal.”]
Historically, title companies have taken the position that title vests automatically in the heirs — except as may be provided by Decedent’s Will. If there’s no Will, or if the Will confirms what would result from automatic vesting in the heirs, a Lack of Probate Affidavit and any Will are recorded, and upon the later sale of the property by the heirs, the title companies will generally insure title for a Deed from the heirs.
Suggestion:  If Decedent left real property that would otherwise require a probate to clear its title, you might consider seeing if you can find a title insurance company willing to issue (now or later) a policy on the property upon your delivery of a Lack of Probate Affidavit (and any Will of Decedent)  Among Decedent’s papers, find the title policy that Decedent purchased when he/she bought the property, telephone them, tell them your situation, and ask for their advice, eg, their willingness to issue a new title policy on the property, now or in the future, upon your execution and delivery to them of a Lack of Probate Affidavit.  Be prepared, however, to:

  *   Pay an increased premium for the policy (relative to its price if the property had been probated).
  *   Shop among title companies to find one that is willing to insure title without your having to probate the property.
What would be best would be to acquire a new title insurance policy now, in the names of Decedent’s takers of the property.  Query: Is its cost substantially less than the cost of a probate, which would allow you to avoid purchasing the new policy altogether?  What might be acceptable, if you can find it, is to acquire the title insurance company’s written commitment now to issue a new title insurance policy in the future in the name of any potential buyer of the property.
Problem:  In Washington, recording any Deed, evidencing transfer of real property, requires the simultaneous submission of a Real Estate Excise Tax Affidavit.  Transfers of real property by gift or inheritance are exempt from the real property excise tax, and the exemption is provided on the Excise Tax Affidavit.  The problem is that WAC 458-61A-202(7), effective December 17, 2005, does not provide for a Lack of Probate Affidavit to be one of the accepted documents for claiming an exemption from excise tax based on inheritance.  Acceptable documents are only: a Community Property Agreement, a Trust Agreement, a termination of joint tenancy, Letters Testamentary or of Administration, or a Court Order.

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

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 Gerald Sprute
Sent: Tuesday, September 28, 2021 6:30 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Removing deceased spouse from deed

Hi All,

Husband and wife established a Revocable Trust that currently holds N Dakota property but not their residence in Washington.  Husband is now deceased.  Is there a way other than opening a probate for husband’s estate that we can transfer clear title of the Washington residence into the trust?  (Wife would be sole heir, no kids outside the marriage).
Jerry Sprute

Law Office of Gerald A. Sprute
P.O. Box 1657
Duvall, WA 98019
Tel: (425) 892-4079
Fax: (425) 844-9151
www.sprutelaw.com <http://www.sprutelaw.com>

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