[WSBAPT] [WSBARP] JTWROS - Community Property question

Tue May 23 11:35:27 PDT 2023

I don't understand what a new "community property with right of
survivorship" option would add to what I think we already have with RCW
64.28.040.

We do LOPAs all the time, but I generally tell the client that if they
don't plan to sell or refinance, the deceased spouse's name on title isn't
really going to make any difference for them, but doing the LOPA now can
make things a little simpler for the family at the second death or if they
need to sell the home quickly because the survivor is going into the
nursing home.

On Tue, May 9, 2023 at 2:54 PM Kira Rubel <kira at theharborlawgroup.com>
wrote:

> Thank you all for weighing in! I agree with Jennifer, we should lobby
> congress to create an RCW for a "community property with rights of
> survivorship" option. It exists in California and makes it so much easier
> on the survivor. Most of my WA surviving spouses look absolutely shocked
> that title to the home doesn't automatically pass directly to them by
> virtue of it being community property.
>
>
> *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/ <https://theharborlawgroup.com/>*
>
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> tax advisor and cannot provide any tax advice to you! Please refer all tax
> matters to your own tax advisor to ensure you are receiving the most
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>
> On Thu, May 4, 2023 at 3:58 PM Doug Schafer <schafer at pobox.com> wrote:
>
>> 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
>>
>>
>>
>> *From:* wsbarp-bounces at lists.wsbarppt.com
>> <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>
>> <wsbarp at lists.wsbarppt.com>; WSBA Probate & Trust Listserv
>> <wsbapt at lists.wsbarppt.com> <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/ <https://theharborlawgroup.com/>*
>>
>> The information transmitted (including any attachments) is intended only
>> for the person to whom it is addressed and may contain confidential and/or
>> privileged material that may be protected by law from disclosure.  If you
>> receive this transmission in error, please notify the sender by reply
>> e-mail and delete the message and any attachments from your computer.  Any
>> review, retransmission, dissemination, copying, or other use of, or taking
>> of any action in reliance upon, this information by persons or entities
>> other than the intended recipient is prohibited.
>>
>> No Tax Advice: No matter what I say in this email, I am an attorney, not
>> a tax advisor and cannot provide any tax advice to you! Please refer all
>> tax matters to your own tax advisor to ensure you are receiving the most
>> up-to-date and relevant tax advice.
>>
>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
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