[WSBARP] PR deed - what are folks using now?

[Eric Nelsen]

Melinda--

I was in on that conversation, along with Dwight Bickel and Mike Winslow. The disagreement was over exactly what difference there is between a B&S deed and the warranties in a "special warranty deed" as if often used (not a statutory form, but a custom version). The special warranty deed "conveys and grants" and after the legal description, says something like:

"The Grantor, for itself and for its successor in interest, does by these presents expressly limit the covenants of the Deed to those herein expressed, and excludes all covenants arising or to arise by statutory or other implication, and does hereby covenant that all persons whomsoever lawfully claiming or to claim by, through or under said grantor, and not otherwise, grantor will forever warrant and defend the same described real estate."

Dwight and Mike convinced me that a B&S deed includes one covenant that the above special warranty deed doesn't:  the warranty of title, meaning that the special warranty deed does not include a warranty that the grantor owns title to the property. Effectively, the deed says "yeah, the Estate will give this property to you, and will protect you against any claim that the Estate conveyed an interest to anyone other than you, BUT we won't give you a warranty that the Estate even owned the property in the first place."

I think this is kind of ridiculous in most circumstances, but I admit I can see some scenarios where an Estate isn't quite sure about the full extent or quality of the decedent's ownership interest, and so does not want to warrant ownership. But c'mon, if the Estate isn't sure that it even owns the property, what business does the PR have in trying to sell it to someone?

For straight inheritance, I just use a Quitclaim Deed to convey to the inheritors, and avoid the whole issue.

If the Estate is selling property, I default (because of Dwight and Mike) to a special warranty deed instead of a B&S deed, even though I think it's overkill in most circumstances and a B&S deed is just fine. I include in my standard "sale by estate" addendum, among other things, a provision saying:

Title shall be conveyed by a Personal Representative's Deed with only the following warranty language: "The Grantor, for itself and for its successors in interest, hereby expressly limits the covenants of the Deed to those herein expressed, and excludes all covenants arising or to arise by statutory or other implication, and does hereby covenant that against all persons whomsoever lawfully claiming or to claim by, through or under said grantor, and not otherwise, grantor will forever warrant and defend the same described real estate."

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040




From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Melinda Grout
Sent: Wednesday, December 31, 2014 1:11 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] PR deed - what are folks using now?

Mates,

A couple of years back there was some discussion of whether or not it is wise to use a standard Bargain & Sale Deed as a PR/Fiduciary deed, as there are still warranties being made in that deed that could come back to haunt the PR.  I have since seen some lawyers using a "PR Deed" with essentially quit claim language, and I have seen some uniquely drafted other language not found in the standard deeds, and I wonder how these will stand up to challenge down the road.  I also wonder if, when using other than standard language in PR deeds, it wouldn't be necessary to reference the granting language with limited covenants in the listing agreement.

I'd appreciate hearing where people are on these matters these days.  For myself, I have still been using Bargain and Sale, but have never felt entirely safe about the whole thing.

Thanks for any discussion or input.  And have a happy and safe new year!

Regards,

Melinda Grout
Law Office of Melinda K Grout, PS
17325 W. Main Street / P.O. Box 1360
Monroe, WA  98272
360-794-4322  / Fax: 425-744-6745

Emphasizing Estate Planning, Probate, and Elder Law
mkgroutlaw.com<http://mkgroutlaw.com>

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