[WSBAPT] FW: community property agreements

[Joshua McKarcher]

Reposting for anyone it helps, including Ms. Clare. I commend the Practice Tip highlighted in yellow to you in your case. 😉 Best, Josh

From: Joshua McKarcher
Sent: Friday, July 16, 2021 6:17 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: RE: [WSBAPT] community property agreements

One important distinction here between recording a CP agreement to memorialize it vs. recording documents to FULFILL it (and change title):

Recording a CP agreement before its fulfillment requires no REETA because no title transfers (e.g., if you record it after signing, even though recordation is not required (contra Idaho, where it must be recorded in each county where real property is located before either spouse dies)). See WAC 458-61A-303(3)(g).

But, look above (3)(g) at sub (2)(a): Recording a death certificate and affidavit to confirm the death of a spouse who was party to a CP agreement and to effectuate transfer of title – i.e., to fulfill the agreement – does require a REETA (which itself should have attached a copy of the recorded CP agreement and a certified copy of the death certificate), because title is transferring and that transfer is exempt from tax. See WAC 458-61A-202(6)(a) (https://app.leg.wa.gov/wac/default.aspx?cite=458-61A-202).

In sum, WAC 458-61A-303(2)(a) relates to fulfillment of the CP agreement after one spouse dies (title transfers = REETA required), and (3)(g) relates to the simple recordation of the document without transfer of title (no affect on title = no REETA required).

Same concept as with Transfer on Death Deeds: no REETA when merely memorialized, but REETA when fulfilled/effectuated.

Practice Tip: if wanting to change title after Spouse 1’s death with a previously unrecorded CP agreement, do not do it all in one step. You’re mixing WACs and staff could be confused easily.

Instead, first, record the CP agreement by itself. Done. No REETA. (Use Simplifile – you’ll never regret paying for it!) Nobody knows to reject anything because you’re not announcing anyone’s death or changing title.

Now you have the document that you must attach to the REETA to change title in step two. So, second, submit the REETA for approval to Treasurer with proposed affidavit supporting CP agreement and related REETA (with attached copy of recorded CP agreement and certified DC) and $10 check. Treasurer signs off on REETA, you record with Auditor the affidavit in support of CP agreement with DC as exhibit. Voila! If anyone argues, you have extremely clear path – for each separate transaction – in the above WACs.

(This is all so absurdly complex that I answer these emails now and then just to provide myself a chance to CONFIRM the law is the same as the last time I looked! Ha!)

Happy weekend, fearless estate planners! Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>

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 Nicholas Pleasants
Sent: Friday, July 16, 2021 5:05 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] community property agreements

Never had a problem recording CPA’s in King County, no REETA required. And I don’t think it should matter what county you record it in, as long as it becomes a public record. And King County is on Simplifile. So perhaps a practical solution is to record all CPA’s in King County :)
Have a nice weekend all!
Best,
Nick

From: <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Joshua McKarcher <josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Date: Friday, July 16, 2021 at 4:11 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] community property agreements

Yikes! No problems I’m aware of in the southeast corner of the State here.

Unless the law changed, it sounds like you have some educating to do. Or, if that falls flat, I’d next be inclined to let the county prosecutor’s office know (gently, at first) that its clients (assessor and auditor, I presume) are making up rules and disregarding law that could have material impact on county citizens and expose the county to legal liability. Perhaps an “opinion” from their prosecutor’s office confirming that state of the relevant laws would help?

Or maybe I’m naïve and you’ll have more of a battle on your hands.

Another approach is to get your friends at the local title company on board. If they confirm that title insurers are not suddenly requesting deeds like you describe, maybe their friends in the assessor’s and auditor’s offices will find their way to play ball.

Good luck!

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>

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 Robert R. Cole
Sent: Friday, July 16, 2021 2:53 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] community property agreements


We are having frustrating problems in the recording of Community Property Agreements (along with the death certificate and an Affidavit) to transfer property to the surviving spouse.  Counties are refusing to record them, saying that they need a deed from the surviving spouse to the surviving spouse.  Even including a REETA doesn't work.   And Island County Treasurer is now saying that the CPA  doesn't pass title, and they won't record a deed from the (now deceased) surviving spouse's estate because the property is still titled in the deceased spouse's name, even tho the CPA etc was recorded over a decade ago.  Are CPAs now basically worthless?
--

Very Truly Yours,
Robert R. Cole
Law Office of Cole & Gilday, P.C.

10101 - 270th St. NW
Stanwood, WA 98292
(360) 629-2900 (Telephone)
(360) 629-0220 (Fax)

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