[WSBARP] Quiet title v. Probate to clear title question

[Jeanne Dawes]

Kate,

First you need to determine what the laws of decent and distribution are in AK to determine who is entitled to inherit from PC's brother.  In WA, if the TIC interest is separate property, it would go one-half to surviving spouse and one-half to children (including adopted children).  Community property would go 100% to surviving spouse.  I recall AK, while not a community property state, allows married couples to opt into a community property arrangement.  You would need to determine if that was done.  If not the property would be considered separate property, and you may be dealing with 3 heirs, (actually now four), heirs of deceased surviving spouse (2 sons), and PC's deceased brother's two children.

If the owners by decent and distribution include those other than the nephew of your PC, you probably want to stay away from a probate action, unless you can get the others to quitclaim their interest in the property to the Nephew.  I'm not sure a Quiet Title action will accomplish what you want, you may need to go the adverse possession route if there are other heirs who will not cooperate.  Although, without seeing the deed, I could not tell from your facts whether the nephew would have color of title.

Jeanne

Jeanne J. Dawes
Attorney at Law
Gore & Grewe, P.S.
103 E. Indiana Avenue, Suite A
Spokane, WA 99207-2317
Voice:  509-326-7500
Fax:      509-326-7503
jjdawes at goregrewe.com<mailto:jjdawes at goregrewe.com>
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kate Gamble
Sent: Wednesday, January 14, 2015 2:23 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Quiet title v. Probate to clear title question

Hello Listmates,

I am looking for insight into how to approach this sticky situation:

PC's brother died about 21 years ago a resident of Alaska.  He left no will, and no probate was ever opened.  His spouse died several years later (also in Alaska).  The spouse was survived by her two children from a prior marriage, and the Decedent's two sons from his prior marriage: one biological and one adopted.  The Decedent was TIC with his two siblings (both surviving) of a parcel of timber land in Cowlitz County.  The parcel was conveyed by QCD to the three siblings over 30 years ago.  The deed language contained some conditions, but failed to specifically reserve a right of entry in the grantor.  One condition stated that the property was not to be logged until the second-growth timber matured (approx. 30 years), and if a grantee deceased prior to the timber maturing, the deceased grantee's share was to go to his/her blood descendants only, per stripes.  The decedent died before the timber was harvested.  The surviving siblings have treated the decedent's biological son as the third owner for the past 20+ years.  However, no deed was recorded conveying the decedent's interest to his biological son.  The siblings and their nephew now want to convey the property into an LLC, but need to clear title first.

This set of facts brings up some tricky issues:

1. Can the decedent's interest be treated as a life estate pursuant to the condition in the deed language, and if so, can title be cleared by filing a death certificate?  Or will the absence of the specific reservation of the right of entry be construed as conveying a fee simple, and the conditions merely precatory?

2. Would a quiet title action in Cowlitz County be sufficient to clear title in the name of the nephew (for his 1/3 share), on the basis of adverse possession with the deed language as supporting the intent that the interest be conveyed to the nephew?

3. Would a probate opened in another county (King or Jefferson- more convenient for the surviving siblings) for the purpose of conveying title by PR deed to the nephew be necessary/possible?

Any thoughts on how to proceed would be greatly appreciated!

Thank you,

Kate Gamble
Attorney at Law
Uptown Law PLLC

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