[WSBAPT] Intestate Inheritance

Tue May 31 14:12:55 PDT 2022

Tracing is always an issue, because Borghi and, even more recently, Watanabe, are clear that the name on title is of little to no weight in determining characterization between spouses. Watanabe suggests the rule is in context of a divorce but I am quite confident that it's equally applicable in probate.

It's true that tracing gets pretty difficult when the transaction was many, many years ago. At that point the presumption is more likely to kick in: that property acquired during marriage is presumed to be community property. That presumption is easier to rebut when there is evidence of separate property funds, and that evidence tends to be available for more recent transactions but more and more is destroyed or lost as time goes by. (In archaeology we called that "taphonomic processes.")

With your PC, I think it's important to advise them of the possibility, and ask if there is any possible evidence suggesting that the house was even partly separate property. Was the house purchased during marriage, did Dad has any possible traceable separate property funds (remember that earnings during marriage, and savings during marriage, are all community). If the PC can't identify any potential evidence, then you can advise that you don't see a viable claim to any inheritance, and give them the usual spiel about statutes of limitations, possible prejudice from delay, and urge them to consult with another attorney if they want a second opinion.

On that case regarding the debt: I'm not sure I follow the facts, but it sounds like the debt was community? I think it's important to parse these situations out by looking at who signed the Promissory Note, and also what was the loan money used for. If both husband and wife signed the Note, they are jointly and severally liable on the debt, and if the house is genuinely separate property and it pays off the debt in full, then husband's separate property Estate should have a cause of action against the wife for reimbursement for half the debt. On the other hand, if community property funds are used to pay off the community debt, then there is no right to reimbursement.

Characterization of debts as separate or community can be very tricky and the case law isn't very clear, in my opinion. There is room for a lot of different arguments.

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>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Jeff at bellanddavispllc.com
Sent: Tuesday, May 31, 2022 1:49 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Intestate Inheritance

Thank you all for your responses on this question.  Several of you point to the tracing concept in that the property really belongs to the person who paid for it.  I understand that in the situation of a divorce, or some other separation while both parties, to the deed, are living.  But in a probate, where as here, the property was bought in 1998 and title taken as H & W, are you really going to trace the purchase proceeds, where the H & W were not contemplating separation or divorce?  Are we turning probate into a family brawl?  What about the sanctity under these facts?

I had a related issue where H, by Will, gave 2nd wife a large cash payment and a life estate in his separate property home.  His children from H's first marriage, tried to have the probate court offset that cash payment by one-half of the "community debt" secured by the house (the bank had required the 2nd wife sign on the loan regardless of the fact she was not on title to the house").  The court denied the kid's request saying one, the Will did not reduce her claim by such debt, and it was the bank that required her to sign although the debt was secured by H's separate property.

I am curious how often does this tracing become an issue.

Jeff

W. Jeff Davis
BELL & DAVIS PLLC
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
email: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.com/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129.

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 Eric Nelsen
Sent: Tuesday, May 31, 2022 11:04 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Intestate Inheritance

Only if there is any argument that any portion of the house was separate property of Dad. The names on the deed are literally not evidence of its character as community or separate property. So if there's an argument that house was purchased or partly purchased with Dad's separate property funds, say before marriage or using money he inherited personally, then PC might have an argument to get 50% of the separate property under (1)(b) of the statute.

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>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

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 Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>
Sent: Tuesday, May 31, 2022 10:51 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Intestate Inheritance

Listmates:

I think the PC takes nothing under RCW 11.04.015.

Dad (PC's father) dies in  2014.  Mom (PC's step mom) just died leaving a son (PC's step-brother).  Neither had wills.  Only real asset is a home held has H & W.  I believe at Dad's death the home goes to mom.  At mom's death all goes to her son.  I do not see PC being entitled to anything under the intestate statute.  Am I wrong?

Jeff Davis

W. Jeff Davis
BELL & DAVIS PLLC
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
email: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.com/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129.

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