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

Wed Dec 13 14:42:12 PST 2023

Good point, Mark.  Adverse possession only works against a tenant in common if there’s been actual ouster.

Professor Karen E. Boxx

University of Washington School of Law

Box 353020

Seattle, WA 98195-3020
206.616.3856
Sent from my iPad

On Dec 13, 2023, at 2:01 PM, Mark Vohr <mcv at ohanafc.com> wrote:

I appreciate this discussion.  I am looking at this a different way.  If a will is never probated, then effectively you are looking at an intestate estate.  I see that title companies will treat title to property that way where there is a will that was not probated.

So, with the case of this property, absent the will being admitted to probate, a process which validates the will for the purpose of transferring property, would not Y and X hold the property as tenant in common?  If so, can adverse possession control ownership of property between tenants in common?

Regards,

Mark

Mark C. Vohr, J.D. CPGC
Ohana Fiduciary Corporation
A Washington Trust Company
155 NE 100th St., Suite 209
Seattle, WA  98125
Telephone:  (206) 782-1189

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Wednesday, December 13, 2023 1:32 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

Ooh, that’s a good one. I’ve wondered how RCW 4.16.020(1) and RCW 11.04.250 interact, and I haven’t found any case law.

RCW 4.16.020(1) is the ten-year statute of limitations that runs against persons out of possession such that “no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action.”

RCW 11.04.250 says that when a person dies, “his or her title shall vest immediately in his or her heirs or devisees, subject to his or her debts, family allowance, expenses of administration, and any other charges for which such real estate is liable under existing laws.” But subject to divestment by a duly appointed PR, and also “no person is deemed a devisee until the will has been probated.”

Case law does say that probating a will always relates back to date of death, so the devisee is retroactively deemed to have “immediately” vested as of date of death.

So, what result?

  1.  If Y probates the will, they become sole owner of the property retroactive to date of death, and now suddenly Z’s 28 years of occupancy is retroactively recharacterized as “hostile” since date of death, adversely possessing against Y. Y receives nothing?
  2.  If Y doesn’t probate the will, maybe Z hasn’t accomplished ouster, so they remain 50-50 owners? So Y cannot receive the entire property as the will contemplates.

Does that mean that effectively, if real property is in someone’s possession for 10 years after date of death and the decedent’s will is probated after that, then any gift of the real property in the will cannot be made effective because the possessor will have adversely possessed against it?

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>

From: David Moe <davidmoe at maplevalleylaw.com<mailto:davidmoe at maplevalleylaw.com>>
Sent: Wednesday, December 13, 2023 12:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Cc: Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Subject: RE: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

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.
Telephone:  425-432-1277
Fax:  425-432-1280
23745 225th Way SE, Suite 108
Maple Valley, WA 98038

Email:  davidmoe at maplevalleylaw.com<mailto:davidmoe at maplevalleylaw.com>

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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 Brent Williams-Ruth
Sent: Wednesday, December 13, 2023 11:58 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

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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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