[WSBARP] complication in transferring RP to Trust

Fri May 19 14:49:45 PDT 2017

I’ve used the Affidavit/Certification of Trust in other jurisdictions and it would seem to include all the pertinent information otherwise required. However, RCW 82.45.197(1)(b) says to claim the REET exception you need to include a “copy of that portion of the trust showing authority of the grantor” and then (2) goes on to say the “documentation provided to the county treasurer must also be recorded with the county auditor”.  This seemed to be news to our local auditor who suggested I contact the DOR, which was actually of even less help (they just quoted the statute and WAC ). To me, the existing statute  would appear to preclude use of the trust certification option to claim the REET exemption w/o a legislative fix. 

As a practical matter, the piece I am struggling with is whether I need to show the trustee’s authority to transfer in general or, instead, the authority/requirement to convey to the specific grantee, which may also include portions of the trust that are irrelevant and/or private. Thanks all for your input, Cy

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640 Mullis St. Friday Harbor, WA

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John McCrady
Sent: Friday, May 19, 2017 12:46 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] complication in transferring RP to Trust

That is a good solution.  I like the “Abstract of Trust” or “Certification of Trust” that some trust creators include in their package.

The problem we always run into is that there is no uniformity between the various counties or even between the several employees at the Auditor’s Office.

We will get one answer from “Bobby” and another answer from “Lee.”

Another legislative fix is needed I think.

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98466

253-476-5721

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bickel, Dwight
Sent: Friday, May 19, 2017 12:06 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] complication in transferring RP to Trust

One answer that I favor is for the Trustee to make an authority statement affidavit that recites, as embedded quotes, the paragraph(s) of the particular trust agreement providing authority.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Cyrus Field
Sent: Friday, May 19, 2017 11:48 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] complication in transferring RP to Trust

Not to hijack the string, but I’m curious what “portion” of the trust, pursuant to WAC 458-61A-202(6)(e), should be recorded showing the “authority  of the grantor” (e.g. trustee) to make transfers from a trust by inheritance/device? The pages showing name of trust and signature page? The current trustee and their general authority? The portion showing the actual trust beneficiary of the real property? I’m going to have to record such a deed soon and I’ve gotten mixed messages/blank stares from local Treasurers as well as the state DOR. Also, do you attach to the deed as an exhibit (as I’m doing now with Letters Testamentary for PR Deeds) or record the docs separately?

Having to record a 40 page trust certainly adds to the cost and detracts from the attraction of trusts for privacy reasons. Thanks in advance for any comments, Cy

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640 Mullis St. Friday Harbor, WA

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The information contained in this e-mail message, including attachments, may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think you have received this e-mail in error, please e-mail the sender at cyfield at rockisland.com and destroy or delete the original and any copies. 

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bickel, Dwight
Sent: Thursday, May 18, 2017 9:21 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] complication in transferring RP to Trust

The WAC requiring an excise tax affidavit for all transfers by operation of law is relatively new [see WAC 458-61A-303 (Feb 28, 2014)]. Fortunately for professionals engaged in real property transactions, the local county recorders are not uniformly enforcing compliance. But some people acting as the DOR agent for excise tax are requiring an affidavit for any change from the prior records to the present grantor, regardless of the time. You can thank Rep. Terry Nealey and the Washington Land Title Ass’n that the revisions to RCW 82.45.197 [HB 2539 in 2016] require no fine or penalty for failure to file that excise tax affidavit.

So, it is possible in the posted question case for a very old divorce that the recorder will not allow recording of the next deed [B to B’s Trust] without an excise tax affidavit showing the transfer by operation of the divorce from A&B to B. Still, nothing would be required from that ex-husband, and of course no tax is due since that was not a taxable sale. 

From: Paul Neumiller

Dwight, as another poster has observed, the WACs seem to require a Real Estate Excise Tax Affidavit for this type of transaction and, I imagine, this is not followed in a great many divorces.  What has been your experience with the failure to file the REET?  Would a county really allow a divorcee to file a REET 30 years after the fact AND who is going to sign for the party giving up the property? 

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