[WSBAPT] Deed signed prior to death (not recorded and no REETA executed)

Thu Jan 4 11:44:44 PST 2024

Yikes indeed.  Although it sounds easy, inexpensive, etc., lots of problems could surface.  What if the client forgets about the deed in your file and goes out and signs and records a different deed, and then dies.  What do you do?  (I had that happen once.)  What if the client’s estate plan changes due to remarriage, death of a beneficiary, etc.?  And after your client dies, who exactly is your client?  And (as you mention) you die or retire?  And will a title insurance company be willing to insure title based on a deed recorded years later, after death.  And then there are issues with using a quitclaim deed.  The list of issues goes on and on . . .
I suggest that we not hold unrecorded deeds for our clients.  Ever.  As noted above, I did it once.  Never again.
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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Sarah McCarthy
Sent: Thursday, January 4, 2024 11:23 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Deed signed prior to death (not recorded and no REETA executed)

I recently saw this done without a probate in California, relating to California properties -- the CA attorney had helped the person sign a couple of Quit Claim Deeds many years ago, conveying the properties to the person's Revocable Living Trust that the CA attorney had also helped the person sign many years ago, on the same date that the deeds were signed -- but the plan had apparently been for the CA attorney to hold the original deeds in his client file until learning that the client had died, at which time the CA attorney would proceed to record the deeds.  I don't know who signed the CA equivalent REETA for the grantor and grantee before recording -- possibly this was not required in CA, but I would expect there is a CA equivalent.  The CA county apparently accepted this post-mortem recording without any issue. I was informed that this CA attorney said that this procedure is something they do "all the time."   I have not (yet) inquired further.  I am guessing that this procedure must have something to do with the CA property tax re-assessment rules, Prop 13, etc., but I would have assumed that a person's transfer into an RLT (a disregarded entity for most, if not all, other tax purposes) would not trigger any reassessment.

At first blush, I don't think this would fly in Washington, for the same reasons this question is being asked.  And I would never advise with this arrangement.  The basic notion of holding original client deeds for years, potentially decades (as happened in this case), with an ongoing custodial duty to record the deeds post-mortem, makes me verrrrry nervous.  What if the attorney retires, or dies? Yikes.

Sarah O’Farrell McCarthy

(Pronouns: she / her)
Attorney, Partner | Kelly, Arndt & Walker, Attorneys at Law, PLLP
P.O. Box 290 | 6443 Harding Avenue | Clinton, WA  98236

(Located on Whidbey Island, Island County, Washington)
Phone: (360) 341-1515 | Fax: (360) 341-3272
sarah at kawlawyers.com<mailto:sarah at kawlawyers.com> | www.kawlawyers.com<http://www.kawlawyers.com/>

IMPORTANT NOTICE FOR DELIVERIES TO THIS OFFICE:

For delivery by USPS, please send to PO Box 290, Clinton, WA 98236.

For delivery by UPS or FedEX, please send to 6443 Harding Ave, Clinton WA 98236.

This electronic message transmission contains information from the law firm of Kelly, Arndt & Walker, PLLP which may be confidential or privileged.  This information is intended to be for the use of the individual or entity named above,  If you are not the intended recipient, be aware that any further review, disclosure, printing, copying, distribution, or use of the contents of this transmission is prohibited. If you have received this electronic message transmission in error, please notify us immediately by reply e-mail and delete the original message.  Thank you.

We do not accept service of any kind by e-mail unless expressly authorized in writing by the attorney of record.  This e-mail is NOT a contract and is not binding upon the author pursuant to CR 2A. This e-mail is, at most, a negotiation under ER 408.

On Thu, Jan 4, 2024 at 10:36 AM Heather de Vrieze <heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>> wrote:
Julie,

I would consider opening probate to execute a new deed (inheritance) based on the provision of the Will. While I can see arguments on both sides of this, I am concerned that the lifetime deed (gift) would not qualify the beneficiary for a step-up in basis, or would be harder to argue when the deed/REETA/supplement are executed as a gift.

Probate and a deed out of the estate provides clarity. (for title too)

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01DA3F03.68634940]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>

de Vrieze | Carney will be closed January 15th in honor of Martin Luther King Jr. Day.
Click here to connect with de Vrieze | Carney on Facebook:   [FB Logo] <https://www.facebook.com/DeVriezeCarney>

CONFIDENTIAL & PRIVILEGED. This e-mail message may contain legally privileged and/or confidential information.  If you have received this e-mail in error, please notify the sender immediately and delete all copies of this e-mail message and any attachment.

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 Julie Martiniello
Sent: Thursday, January 4, 2024 10:08 AM
To: Trust and Probate Section <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Deed signed prior to death (not recorded and no REETA executed)

Hello All,

I have a Client where Decedent executes a deed transferring title prior to his death. However, no REETA was done and the deed was not recorded. This is the only asset in the estate. Client intends to keep the property and no plans to sell or finance- or I would just ask the title company their requirements. Decedent's Will also bequeathed property to the Client.

My thoughts are that no one has legal authority to sign as the Grantor(or Agent for Grantor), without being appointed as PR by a court. It seems like a lot to open a probate for this one signature. I wanted to see if anyone has thoughts on if there are any other solutions or if someone can sign the REETA on behalf of the Decedent without a probate?

--

Respectfully,

Julie Martiniello, Partner
Dimension Law Group, PLLC
Office:  206-973-3500│Fax:  206-577-5090
Email: julie at dimensionlaw.com<mailto:synthia at dimensionlaw.com>
www.dimensionlaw.com<http://www.dimensionlaw.com/>

631 Strander Blvd, Bldg A, Suite G, Tukwila, WA 98188

PRIVILEGED AND CONFIDENTIAL:  This email (including any attachments) is intended only for the use of the individual or entity named above and may contain privileged or confidential information. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are notified that any review, dissemination, distribution or copying of this email is prohibited. If you have received this email in error, please immediately notify us by email, facsimile, or telephone; return the email to us at the email address below; and destroy all paper and electronic copies.

PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is intended only for the use of the individual or entity named above and may contain privileged or confidential information. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are notified that any review, dissemination, distribution or copying of this e-mail is prohibited. Attempts to intercept this message are in violation of 18 USC 2511(1) of the Electronic Communications Privacy Act, which subjects the interceptor to fines, imprisonment and/or civil damages. If you have received this e-mail in error, please immediately notify us by e-mail, facsimile, or telephone; return the e-mail to us at the e-mail address below; and destroy all paper and electronic copies. Any settlement offer contained herein is made pursuant to Washington ER 408, and without admitting fault or liability on the part of this firm’s client(s) or its agents.  IRS CIRCULAR 230 DISCLAIMER:  To ensure compliance with requirements imposed by the IRS, I inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code; or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter addressed herein.
***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.***
_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbapt
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20240104/7fdded02/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 17884 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20240104/7fdded02/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 18009 bytes
Desc: image002.png
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20240104/7fdded02/image002.png>