[WSBAPT] [WSBARP] JTWROS - Community Property question

Tue May 23 23:09:06 PDT 2023

One thought if JTWROS: it's possible that there will be insufficient assets to fund a trust with a decedent's half of the estate if estate tax planning is necessary. Best, Claudia

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Diane J. Kiepe <DJKiepe at depdslaw.com>
Sent: Tuesday, May 23, 2023 11:45:47 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] [WSBARP] JTWROS - Community Property question

Chandra,

That is interesting that you do them all the time.  I can tell you that locally here in Spokane County we get push back and so don’t do them regularly.

Diane J. Kiepe

Diane J. Kiepe

Douglas Eden

717 W. Sprague Ave.

Suite 1500

Spokane, WA  99201

djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>

509-455-5300

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Chandra Lewnau
Sent: Tuesday, May 23, 2023 11:35 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] [WSBARP] JTWROS - Community Property question

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<mailto: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/

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.

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On Thu, May 4, 2023 at 3:58 PM Doug Schafer <schafer at pobox.com<mailto: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<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com><mailto: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><mailto:wsbarp at lists.wsbarppt.com>; WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com><mailto: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/

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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