[WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!
Andrekita Silva
ak at seattle-silvalaw.com
Wed Dec 13 17:57:34 PST 2023
Law Office of
F.ANDREKITA SILVA
_______________________________________________________
December 13, 2023
Wow, Eric, that is truly crazy.
I always assumed that statutes codify common sense (or cases that have been determined based on the court's common sense.) I understand that a nominated PR should not start administering an estate until they are authorized- banks and creditors, etc. need to know that they are dealing with an authorized person- hence Letters provide that proof. But, if a PR takes over a piece of real estate he/she knows to be devised for someone else shortly after the testator's death, it seems like they are implying to other natural heirs that they do so under some authority.
I guess if I were Y and I wanted to take possession of the house, I would argue that Z communicated through his/her actions that the home had been devised to Z and that, Y, being an ordinary person with no knowledge of the law, did not question it or know better. Could Y argue the discovery rule? And say that the statute of limitations on adverse possession was tolled? ( Is AP the kind of time frame to which statute of limitations can be applied..? )
Generally, I'd say that unless there were other assets, it's sad that a parent would devise everything to only one child. And, if the parent did devise in an equitable and fair manner, it's sad that one sibling might take what they aren't entitled to from their other sibling.
You'll have to let us know how this case ends!
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 940
Seattle, Washington 98101-2509
206-224-8288
www.seattle-silvalaw.com [1]
On 2023-12-13 17:08, Eric Nelsen wrote:
> Hi Andrekita--Facts have been altered to protect confidentiality but
> the scenario gets at some genuine issues I am grappling with. Glad you
> like it!
>
> Re legal duties of Z, my understanding is that no, Z has no duties at
> all under a will that hasn't been probated--except to file it in
> the court of appropriate jurisdiction if Z learns of X's death and Z
> has custody of the original. An executor named in a will has no
> duties, and in fact is expressly _not_ authorized to act, until the
> will has been probated and they have qualified by filing oath (and
> bond if required).
>
> So far as I'm aware, even if Z was appointed and qualified, Z still
> has no duty to tell anybody the contents of the will. Just mail the
> Notice of Appointment and Pendency of Probate to all heirs, legatees,
> devisees, etc., after performing reasonable diligence to obtain
> mailing addresses.
>
> One of the reasons that it's best for a testator to truly trust the
> person nominated as Executor.
>
> 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: Andrekita Silva <ak at seattle-silvalaw.com>
> Sent: Wednesday, December 13, 2023 4:54 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!
>
> 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 [1] [3 [1]]
>
> 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
>
> CONFIDENTIALITY NOTICE: This communication is intended for the
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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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