[WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale

Wed Oct 19 15:28:45 PDT 2022

I can't think of more than a time or two that I have used a LOPA in my practice.  I tell people (especially if 2 years have not gone by) it's best to probate when real estate is involved.  Someone once told me that very early in my career and it stuck.

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 Candace Wilkerson
Sent: Wednesday, October 19, 2022 2:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale

Wow.  This is pretty terrifying.  It makes me wonder if doing a Lack of Probate Affidavit is a bad idea if there is real property involved?  I assist clients with doing them all the time.

What about the attorney who drafted the Lack of Probate Affidavit for the seller-would that attorney be sued for malpractice if the seller gets sued?  And how to avoid a problem like this?

Best,
Candace Wilkerson

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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 Diane J. Kiepe
Sent: Wednesday, October 19, 2022 2:15 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale

So the insurance company was wise to protect their interest by excluding wife's creditor's of her estate for claims that would have been disclosed.  This likely takes them off the hook.  Because no notice to creditor's was given, I read the rights of DSHS running 2 years.  In essence, and off the cuff without more research, I would think your client's have a cloud on title and that they may have a claim against seller if the property passed by warranty deed. As between DSHS and buyers, I am not sure if there is a bona fide purchaser defense, particularly since no probate took place.

>From a practice standpoint, I  would call DSHS and try to get the amount they are claiming as their lien.  Then, depending on the amount, you can make a plan moving forward.

I am so interested in knowing how this turns out.  If you can share with us the end result down the road, I sure would appreciate it.

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 Natalie Kuehler
Sent: Wednesday, October 19, 2022 10:56 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale

Thank you both! The title insurance policy has an exclusion for creditors of the predeceased wife's estate that would have been disclosed if a probate action had been filed, so getting coverage for this might prove difficult.

Natalie

Natalie N. Kuehler

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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 Marcus J. Fry <mjf at witherspoonkelley.com<mailto:mjf at witherspoonkelley.com>>
Date: Wednesday, October 19, 2022 at 10:48 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale
Natalie:
Contact the title insurer because this should have been insured against fbo your clients.

Marcus J. Fry
Attorney | Witherspoon * Kelley
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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 Leighann Hansing
Sent: Wednesday, October 19, 2022 10:19 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale

RCW 41.05A.090 (6) A lien authorized under this section relates back to attach to any real property that the decedent had an ownership interest in immediately before death and is effective as of that date or date of recording, whichever is earlier.

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 Natalie Kuehler
Sent: Tuesday, October 18, 2022 1:07 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] DSHS Lien on Real Property Recorded After the Property's Sale

Hello all,

I have clients who purchased real property from a widower, with title insurance that was secured by the widower's completion and filing of a lack of probate affidavit. No probate for the wife's estate was ever opened, and the lack of probate affidavit confirmed that there were no outstanding debts or expenses arising from his wife's last illness. After the sale closed, but within two years of the wife's death, DSHS filed a Notice and Statement of Lien (Estate Recovery) for an undisclosed amount.

Can DSHS enforce the Lien against the real property even though the property was sold to my clients at market rate? Are there any deadlines for enforcement of a DSHS lien that is placed on property after the surviving spouse of the deceased debtor has sold it? The lien at this point is already over two years old, and the real property was transferred to my clients over three years ago.

Any thoughts (or referrals) would be appreciated.

Thank you!
Natalie

Natalie N. Kuehler
THE KUEHLER LAW FIRM PLLC
PO Box 3059 - 1112 State Route 20
Winthrop, WA 98862
o: (509) 996-2832 x1 - c (509) 557-5769
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