[WSBAPT] Probate Including Real Property Owned as Tenancy-in-Common, Other Tenant Predeceased Decedent and No Identified Heirs or Estate

[Eric Nelsen]

Watch out for the color of title requirement in order to assert adverse possession by payment of taxes for 7 years under RCW 7.28.070. I just did research recently on that point and being a tenant in common on title isn't sufficient to show "color of title in good faith" to the other TIC owner's interest. See Nicholas v. Cousins, 1 Wn.App. 133, 459 P.2d 970 (1969). There needs to be some kind of instrument of record, however bogus, that appears to give title solely to the plaintiff. See Scramlin v. Warner, 69 Wn.2d 6, 416 P.2d 699 (1966).

Partition probably would work? The tricky bit will be naming defendants-can't sue the estate of the other deceased owner because there's no PR, and you don't have any names of potential heirs or devisees. Will need due diligence to support an affidavit under RCW 4.28.140, name "unknown heirs" and get the court's permission to serve by publication.

Even finding one heir at law to the other decedent might be worth it-gives you somebody to serve and/or gain cooperation from, and gives the court better confidence that service by publication isn't just a procedural grab for ownership of the whole property. Could use a genealogist instead of an investigator, since you know the actual owner is deceased.

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: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Matt Yates
Sent: Thursday, July 27, 2023 4:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate Including Real Property Owned as Tenancy-in-Common, Other Tenant Predeceased Decedent and No Identified Heirs or Estate

Thank you, Mark.  That does seem like the path we will choose but I wanted to ensure that I wasn't missing another option.

Cheers,
Matt

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 Mark Anderson
Sent: Thursday, July 27, 2023 3:41 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Probate Including Real Property Owned as Tenancy-in-Common, Other Tenant Predeceased Decedent and No Identified Heirs or Estate

Did Decedent pay property taxes for the home in addition to the mortgage loan?  If so, it sounds like you may have met the statutory requirements for an adverse possession claim.  If so, I recommend proceeding with a quiet title action.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.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 Matt Yates
Sent: 07/27/2023 11:10 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probate Including Real Property Owned as Tenancy-in-Common, Other Tenant Predeceased Decedent and No Identified Heirs or Estate

In probate proceeding, Decedent was Tenant-in-Common in home and other tenant who predeceased Decedent by about 8 years.  Predeceased tenant has no known heirs at law to PR but it is certainly possible that cousins or other distant relatives exist.  PR for the estate is interested in liquidating the real property, for which there is an applicable mortgage loan, but I am unsure of how to sell.  I anticipate that title company will want some kind of resolution before issuing a policy and, indeed, some portion of the proceeds belong to the estate of predeceased tenant-in-common (probably unequal portions since Decedent continued to pay mortgage loan after death of predeceased tenant).  I have proposed to PR using a private investigator to try to find potential heirs of predeceased tenant-in-common but PR has not made a decision on that yet.

This seems distinct to me from an absent distributee so I am thinking that partition or even quiet title might be the answer to enable sale of the property.  Anybody have any experience with similar circumstances?
Matt

Matthew D. Yates
Attorney at Law
Yates Marshall, PLLC
10000 NE 7th Avenue, Suite 200
Vancouver, WA 98685
Phone: (360) 449-6100
Fax: (360) 449-6111
matt at yatesmarshall.com<mailto:matt at yatesmarshall.com>
www.yatesmarshall.com<http://www.yatesmarshall.com>

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