[WSBAPT] [WSBARP] JTWROS - Community Property question

[Doug Schafer]

My recollection, from decades ago, is that deeds to married couples 
generally included "husband and wife" after their names, and that such 
verbiage indicated that the property was considered their community 
property. And at the death of the first spouse, generally no affidavits 
were then prepared or recorded if the surviving spouse intended to continue 
residing in, or at least owning, the property (whether or not the couple 
ever had signed or recorded a community property agreement).  At such time 
as the surviving spouse died or chose to sell the property, that spouse or 
an executor then would provide a title insurance company whatever 
assurances that company requested (for its internal files) in order to 
insure the buyer's title.

I don't recall ever preparing or recording a Lack of Probate Affidavit for 
a surviving spouse, nor am I aware of any statute or case law requiring 
such. I viewed lawyers who routinely prepared such affidavits at a 
first-spouse's death as simply doing so to generate fees.  Practices appear 
to have changed over the decades.

Doug Schafer, WSBA 8652 (admitted 1978)


On 5/4/2023 14:40, Eric Nelsen wrote:
>
> I agree, JTWROS works, but I generally avoid it as an EP mechanism 
> because JTWROS is such a fragile state of title. Even some 
> off-public-record events can be enough to sever the right of 
> survivorship, if I remember correctly. And certainly it’s unilaterally 
> severable by executing a quitclaim deed from “X to X, to hold as tenant 
> in common and sever right of survivorship.” In contract, a Community 
> Property Agreement is contractual and not unilaterally terminable, and 
> can also apply to all property instead of just one particular parcel of 
> real estate. If the parties sell and buy a new property, the CPA will 
> cover the new property but otherwise they’d have to remember to take the 
> new parcel as JTWROS.
>
> 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:* wsbarp-bounces at lists.wsbarppt.com 
> <wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Kira Rubel
> *Sent:* Thursday, May 4, 2023 2:02 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>; WSBA 
> Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBARP] JTWROS - Community Property question
>
> Hey team - I don't know about the rest of you but I'm so tired of telling 
> my surviving spouses that they have to do a lack of probate affidavit or, 
> worse yet, a probate for the home they owned as community property!
>
> Assuming there is no living trust or community property agreement, am I 
> correct that RCW 64.28.040 is the third workaround, in that it allows a 
> married couple to hold title to real property as JTWROS and still get the 
> full step-up in tax basis on the first death? If so, why don't I see more 
> deeds held this way? Is anyone else doing this?
>
> /Kira M. Rubel, Esq./
>
> /*Licensed in CA and WA/
>
>
> 8811 N. Harborview Dr. Ste. B
> Gig Harbor, WA 98332-2174
> Tel.  (253) 358-2215
>
> _https://theharborlawgroup.com/_
>
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