[WSBAPT] Resolving Potential Conflict Between Will and TODD

[Diane J. Kiepe]

I think I would change the language slightly if you think after the codicil more TODD may be done because you are noting after the Will and before the first Codicil.  This would not cover any TODD after the First Codicil.  I also might add to the language recording details of the properties you know have been transferred because the TODD has to be filed prior to death anyway.
What needs to be clear though, in my humble opinion, is that the takers under the Will are the first to have their shares diminished for estate expenses and those shares can be eliminated entirely in the worst-case scenario, before the TODD property is affected.  This may or may not be okay with your client.  I have seen TOD and POD accounts create conflicts in family when the receiver (legally) takes and keeps the cash.

Good Luck.
Diane J. Kiepe
Douglas Eden, P.S.
717 W. Sprague Ave., Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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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  It is my desire that any such Transfer on Death Deeds that have not been revoked supersede a) any contrary provision of my Will, and b) any contrary effect of RCW 11.04.250 with respect to vesting.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)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
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