[WSBARP] Omitted Child--RCW 11.12.091

[Catherine Clark]

Thanks Eric.  Ugh.

Catherine C. Clark
Law Office of Catherine C. Clark PLLC
2200 Sixth Avenue, Suite 1250
Seattle, WA 98121
Phone:  (206) 838-2528
Direct Dial:  (206) 274-7941
Cell:  (206) 409-8938
Fax: (206) 374-3003
Email:  cat at loccc.com

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Tuesday, November 15, 2016 4:39 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Omitted Child--RCW 11.12.091

When in doubt, I'd pass the buck:  Order a litigation guarantee and hand all the facts over to the title company. Let them determine who they are willing to insure as title owners, so you can properly identify your defendants and be insured in case there is a mistake in identity of defendants.

If the title company requires naming everybody, you could do an immediate offer to settle most of them out by stipulation if they'd so agree. If they don't have any interest in the property they'd probably be happy to agree to anything to get out of the litigation.

My thoughts on the facts:

With no probate, the Will is not effective to pass title. In the absence of a probated Will, the real property passes by intestacy. If it was community property, the surviving spouse inherited the entire house. If it was separate property, then the husband inherited a share and the kids inherited the rest by right of representation, see RCW 11.04.015.

The whole mess is hopefully cut short by adverse possession by the one child who lived there. Ironically, it is easier to establish adverse possession if the house was community property, because the child then had no interest whatsoever in the house, and I assume the child can prove exclusive, continuous, hostile, open and notorious possession for 10 years against any claim of the surviving spouse. If the house was separate property, then the child is at best a tenant in common owner, and to prove adverse possession would have to show the additional element of ouster.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Catherine Clark
Sent: Tuesday, November 15, 2016 4:07 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Omitted Child--RCW 11.12.091

All:

I'm working on a case in which we have a copy of a will (no original).  This copy identifies the four children of the decedent and the husband.  The entirety of the estate is given to one of the four children.  There is no language like "I know these are my children but I'm not giving them anything" or "I specifically do not provide for my husband."

Title to a portion of the estate is contested by a neighbor.  Of course, this will was not probated.

In our quiet title action, should we name all four children and the husband (and/or his estate)-the will is 30 years old?

Or, since the one child who received everything has lived on the property since, should we treat any and all other claims to the property as extinguished by adverse possession and leave it at that?

Your thoughts appreciated.

Thank you.

Catherine C. Clark
Law Office of Catherine C. Clark PLLC
2200 Sixth Avenue, Suite 1250
Seattle, WA 98121
Phone:  (206) 838-2528
Direct Dial:  (206) 274-7941
Cell:  (206) 409-8938
Fax: (206) 374-3003
Email:  cat at loccc.com<mailto:cat at loccc.com>

NOTICE: The information contained in this electronic information transmission is confidential. If you are not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is prohibited.  If you received this communication in error, please immediately notify the sender by telephone at (206) 838-2528. Thank you.

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