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

Wed Dec 13 16:54:22 PST 2023

Law Office of 
F.ANDREKITA SILVA
_______________________________________________________   

December 13, 2023

Eric,

If Z was named the PR in the Will, wouldn't he have some fiduciary obligation to have done more than just file the Will? Wouldn't Z have had the obligation to communicate to Y that there was a Will and that the home was devised to Y? Begging the questions: What was Y's response?

Anyway, I don't think we can cheat and pretend NO communication. 

Unless there were other assets or unless Y is disabled and Dad was trying to provide for an adult child who might not be able to provide for himself, it seems really weird to me that Dad would have nominated Z as PR but given the house to Y.  

Is this a real case or are you pulling our leg? Cuz this is a good one! 

andrekita 
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 940
Seattle, Washington 98101-2509
206-224-8288
www.seattle-silvalaw.com [3]

On 2023-12-13 13:31, Eric Nelsen wrote: 

> 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? 
> 
> * 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?
> * 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 
> 
> From: David Moe <davidmoe at maplevalleylaw.com> 
> Sent: Wednesday, December 13, 2023 12:50 PM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Cc: Eric Nelsen <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 
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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_ 
> 
> 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> 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 
>> 
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