[WSBAPT] Transfer of Interests in Real Property

[Eric Nelsen]

I think the rationalization is that "conveyance" means a voluntary act, and does not apply to transfers of real estate by court action or operation of law.

No deed is required to transfer ownership of real property in a divorce, for example-the judgment alone is sufficient. See, e.g., In re Marriage of Kowalewski, 163 Wn.2d 542, 548, 182 P.3d 426 (2008), citing see United Benefit Life Ins. Co. v. Price, 46 Wn.2d 587, 283 P.2d 119 (1955), overruled on other grounds by Aetna Life Ins. Co. v. Wadsworth, 102 Wn.2d 652, 689 P.2d 46 (1984).

Also recall the underlying doctrine in adverse possession-that 10 years of exclusive, continuous, hostile, open & notorious possession is enough to actually transfer ownership, and the court's judgment later on merely confirms the transfer that occurred back when the 10-year requirement was met.

Same thing with inheritance, I think. The fundamental rules about real estate in our legal system is that it's always owned by somebody. So inheritance is instant upon death (in theory anyway since the simultaneous death act, Ch. 11.05A RCW, leaves a 120-hour window in which the instant vesting can be retroactively deemed not to have happened).

The issue I think Mark's driving at is, how does one find out that the owner listed in the public record has died and somebody else now owns the property. As with adverse possession, I think it won't show up in a title search until somebody takes formal action confirming the transfer that already happened by operation of law at the time of death. That is most often done via a probate with the PR executing a deed, but it could also occur without a deed by the Court entering a Decree of Distribution. Alternatively, an adjudication of testacy or intestacy under RCW 11.28.340, without appointment of a PR, is also effective as a Decree of Distribution.

So the fact of the inheritance won't show in a title company's search until there is some kind of formal action to put either a Decree or a deed into the public record. If the probate doesn't happen for years, then a title search won't reveal the anomaly for that entire time: even though ownership has actually passed by inheritance, there is nothing in the record confirming it. Same problem with adverse possession, really: there could be an existing adverse possession of part of the property, and there's no way to tell from the title documents, until the possessor get a judgment quieting title.

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 Philip N. Jones
Sent: Tuesday, May 30, 2023 10:25 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Transfer of Interests in Real Property

I share Mark's curiosity.  Down here in Oregon, we have a similar statute.  I have never understood what effect it has.
Perhaps it is similar to the early vesting rule we have down here, which provides that assets in a trust or estate vests at the earliest possible moment, usually at the death of the testator (or trustor) unless the document states otherwise.  So if I die, my assets vest in my kids, even if one of them dies the next day, unless my will states otherwise.  But my estate still needs to go through probate for formal title to pass by a PR's deed.
Does anyone have a different take on that statute?
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

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: Tuesday, May 30, 2023 10:13 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Transfer of Interests in Real Property

Dear Listmates:

It has oft been said (indeed it is said below) that "real property, its rights and burdens, vest in the devisee at death, subject only to claims against the estate."

How, then, does this premise circumvent or supersede the requirements of RCW 64.04.010 that conveyances and encumbrances are to be by deed?  I acknowledge the "PROVIDED" language in that statute, but I am not clear on the mechanics involved.

And how would you expect a title search to reveal such a transfer?

In advance, thanks for your input.

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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