[WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!
Jennifer L White
jen at appletreelaw.com
Thu Dec 14 09:24:12 PST 2023
Eric,
It sounds like you need to make us some law 😊
Jennifer L. White, Esq.
[cid:image001.jpg at 01DA2E6F.4C618D00]
jen at appletreelaw.com<mailto:jen at appletreelaw.com>
2200 S 76th Ave
Yakima, WA 98903
509.225.9813
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Thursday, December 14, 2023 9:20 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!
Fortunately, the true situation is not nearly so stark as I have laid out in my hypothetical—I altered the facts to an extreme in an effort to determine the outer parameter of duties and equity. My principal problem is that I can’t find case law—even in my 50-year-old set of Am.Jur.--that really analyzes the priorities between intestate inheritance rights, devisee rights under an unprobated will, and possessory rights, where there is significant delay and statutes of limitation and equitable doctrines of laches could come into play.
If I do come up with an answer, I’ll be sure to post something!
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: Andrekita Silva <ak at seattle-silvalaw.com<mailto:ak at seattle-silvalaw.com>>
Sent: Wednesday, December 13, 2023 5:58 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!
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
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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<mailto:eric at sayrelawoffices.com>
From: Andrekita Silva <ak at seattle-silvalaw.com<mailto:ak at seattle-silvalaw.com>>
Sent: Wednesday, December 13, 2023 4:54 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!
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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.seattle-2Dsilvalaw.com&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=kDcM-fraYQNOZ1rCslLoMSSRXJQXmQVvRJbE6ymQGho&m=HLPu8FX3rSZLsukFTA-xGF7LLPrACi4rsLBLGmBjw-jZO_-45GjT0jOfw_k1aGPS&s=Wyoa0mmiH3Omum5Y4XM92o9_Y6lc_2bdpuNvlQRy3MA&e=> [3<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.seattle-2Dsilvalaw.com&d=DwMGaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=kDcM-fraYQNOZ1rCslLoMSSRXJQXmQVvRJbE6ymQGho&m=HLPu8FX3rSZLsukFTA-xGF7LLPrACi4rsLBLGmBjw-jZO_-45GjT0jOfw_k1aGPS&s=Wyoa0mmiH3Omum5Y4XM92o9_Y6lc_2bdpuNvlQRy3MA&e=>]
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<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
Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA
98003
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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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