[WSBAPT] Resolving Potential Conflict Between Will and TODD

[Heather de Vrieze]

I know this isn't the question you asked, but why would John be distributing his real property via a TODD and not the Will. Just because this tool exists doesn't mean folks should be using it.
To answer your question, I think including the language you reference, ideally with identifying information for each property, is better than not having this language in a validly executed Will or Codicil, simply because clarity of intention is helpful. However, I believe that the TODD is going to supersede the will in any case, whether the TODD is executed before or after the date of a Will.
Heather
Heather S. de Vrieze
Attorney-at-Law
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Mark Anderson
Sent: Friday, January 26, 2024 10:47 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Resolving Potential Conflict Between Will and TODD

Dear All:
Happy Friday!
John owns a parcel of real property.  John has a Will that sets forth the distribution of his Estate upon his death.  Subsequent to executing that Will, John executed and caused to be recorded a Transfer on Death Deed for his real property.  The Grantee under the Transfer on Death Deed is a person other than someone who would otherwise take under John's Will (i.e., not an heir or devisee).
As has been discussed before, there appears to be an issue of which takes precedence: the Will or the Transfer on Death Deed.
In an attempt to proactively address this issue, I drafted the following language to include in a Codicil to John's Will:
After execution of my Will and prior to the execution of this First Codicil, I executed and caused to be recorded one or more Transfer on Death Deeds made pursuant to Chapter 64.80 RCW with respect to certain real property.  It is my desire that any such Transfer on Death Deeds that have not been revoked supersede a) any contrary provision of my Will, and b) any contrary effect of RCW 11.04.250 with respect to vesting.
Questions:
Assuming the Codicil to be properly executed and attested to, should this language be sufficient to overcome the apparent conflict between the Will and the Transfer on Death Deed?
Would you recommend that the Codicil also include a list and legal description of each piece of real property?
Any other suggestions or insights?
Thanks.
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)
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