[WSBAPT] TODD revocation

Thu Oct 13 14:25:22 PDT 2022

I agree with Josh's idea, do a QCD and transfer the property to a RLT.  That way if the realtor records the deed thereafter, it is ineffective because grantor no longer owns property.  I would suggest a joint co-trustee situation to further protect client because she is obviously vulnerable.  Of course, in the QCD, certainly include language expressly revoking the TODD that she signed.

Marcus J. Fry
Attorney | Witherspoon * Kelley
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Thursday, October 13, 2022 1:21 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] TODD revocation

Heather,

Fascinating (and sad). As best you can, I would stick to RCW 64.80.080 (pasted below in this email) as closely as possible so you have an "objective" revocation and do not have to "subjectively" prove undue influence, etc.

In particular, relying on sub (4) of the statute, I would make an inter vivos transfer to another grantee than her (who is the grantor on the TODD). This objectively neutralizes the TODD "no matter what."

So, reading the whole RCW, I would, if possible do both of these: (1) sign/notarize the revocation describing as close as possible the date, name, situation, etc., and (2) convey the property to a trust in a deed that expressly states it is intended to revoke any prior transfer on death deeds recorded or unrecorded.

(A "second best" option to (2) is to record a new TODD to a different person, if her estate plan is susceptible of such a blunt instrument of real property disposition. But I don't think that works as well as relying on sub (4) below.)

That way anything recorded after the deed into the trust just isn't relevant any longer; it can't "do" anything because sub (4) below says so. Even a title underwriter would have a hard time insisting on obtaining some kind of release from the realtor-TODD beneficiary who tried to record AFTER the transfer to trust.

The problem is sub (1) below does not contemplate this bizarre issue of an UNRECORDED TODD. Its revocation provisions contemplate the TODD being recorded before the revocation. (See below.)

So, the issue with only having a revocation in hand "to record if needed" is that if the realtor records 10 seconds before death, realtor at least preserves an argument that the document you're describing - even if you recorded it BEFORE realtor recorded the TODD - did not revoke anything when recorded, because the realtor's TODD had not yet been recorded. In support of her argument, she could rely on the language of sub (1) below.

Then, you're really in the position of arguing statutory interpretation or undue influence, fraud, etc. Fun maybe, but unnecessary, if a simple lifetime conveyance now makes the TODD irrelevant anyhow. (Thank goodness this person SURVIVED to remedy this. Good grief.)

Good luck! Best, Josh

(1) Subject to subsection (2) of this section, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:
  (a) Is one of the following:
    (i) A transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency;
    (ii) An instrument of revocation that expressly revokes the deed or part of the deed; or
    (iii) An inter vivos deed that expressly revokes the transfer on death deed or part of the deed; and
  (b) Is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded before the transferor's death in the public records in the office of the county auditor of the county where the deed is recorded. [all of sub (1) is irrelevant if not recorded before death where the deed being revoked "is recorded"]
(2) If a transfer on death deed is made by more than one transferor:
  (a) Revocation by a transferor does not affect the deed as to the interest of another transferor;
  (b) A deed of joint owners is revoked only if it is revoked by all of the joint owners living at the time that the revocation is recorded; and
  (c) A deed of community property by both spouses or by both domestic partners is revoked only if it is revoked by both of the spouses or domestic partners, provided that if only one of the spouses or domestic partners is then surviving, that spouse or domestic partner may revoke the deed.
(3) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed.
(4) This section does not limit the effect of an inter vivos transfer of the property.

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 Heather de Vrieze
Sent: Thursday, October 13, 2022 12:19 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] TODD revocation

If a client relays to me that they were convinced to sign a TODD in the hospital, under duress and they want to revoke it immediately, will signing/notarizing a revocation be sufficient. The TODD does not appear to have been recorded, but client is very concerned.

And FWIW, the TODD beneficiary is a realtor, and the person who apparently may have drafted the document was notarized on her way into surgery.

Heather

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