[WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

[David Moe]

I’ll bite with my speculation:
Where Y and Z are heirs at law of X, given lack of probate, Z would need to prove “ouster” of Y to satisfy the “hostility” element.  Without probate of the will, child Y and child Z are heirs at law and co-tenants.  Clear, unequivocal, notice to the “ousteree” is required. I’m guessing that Y’s elevator has never risen all the way to the top floor.  Much more than exclusivity of possession  is required to commence and continue running of the 10-year statute against a co-tenant in that circumstance.

David Moe Attorney, P.S.
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Wednesday, December 13, 2023 11:58 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

Would the adverse possession claim be defeated because of the fact that it was done with permission. Therefore failing one of the essential elements of hostility?

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

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On Tue, Dec 12, 2023 at 5:21 PM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
What happens if somebody’s will, in the public record but not probated, is completely ignored for decades?

X has a will leaving house to child Y, leaving nothing to child Z. X owns a house.

X dies, and the will is filed for permanent record but no probate commenced.

Z moves into the house immediately after X dies.

Y does nothing for, let’s say, 28 years.

Who wins ownership of the house? Z under 10-year adverse possession rules? Or Y if the will is, after 28 years, finally presented for probate?

Assume no communication between Y and Z, so no fair evading the question by arguing maybe Z held by Y’s permission or some such.

I’m guessing Z does, because adverse possession tends to override all other interests. But what if Z was the named executor in the will they filed but elected not to probate?

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>

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