[WSBARP] Deed to husband and wife- JTWROS?

Tue Sep 18 09:03:15 PDT 2018

Since all community property vests at death immediately in the surviving spouse, title companies will often insure a transaction after the death of a spouse and without a probate.  We require a “Lack of Probate Affidavit” which, among other things, informs us whether the deceased had a will.  If the deceased had a will, then we would require that the interest of the devisees be disposed of somehow.  (Typically we would look for deeds from the devisees.)

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kary Krismer
Sent: Tuesday, September 18, 2018 7:35 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Deed to husband and wife- JTWROS?

You can avoid probate with community property, at least as to the personal residence.  Not sure about other community real property such as investment property.

I've had several transactions over the years where a spouse died and the residence was later sold without a probate proceeding.  As I mentioned in the direct email, one even occurred where the husband unexpectedly died on the day an offer came in.  There was no delay in closing.

And again, before going the JTWRS route I'd make sure that would still give you the step up in basis on the death of a spouse.  I think it would because technically the property would still be community property, but I'd ask a tax attorney because that could be a huge problem if it didn't get the step up in basis.

Also, someone else mentioned that there would not be a presumption of community property in a deed made out to a husband and wife.  Has Creasman been overruled?  Even a deed to a single spouse is presumed to be community property under Creasman.

Kary L. Krismer

John L. Scott/KMS

206 723-2148
On 9/17/2018 5:59 PM, Anessa Novasio wrote:
Thanks John. The purpose is to avoid probate. My understanding is that to do that it has to be explicitly deeded as joint tenants with right of survivorship. And husband and wife as community property is not enough to avoid probate. So I didn’t really ask my question is clearly as I should have. Any further advice would be appreciated. Thank you

On Mon, Sep 17, 2018 at 5:04 PM John McCrady <j.mccrady at pstitle.com<mailto:j.mccrady at pstitle.com>> wrote:
One caveat:  RCW 64.28.020 does create a presumption that property acquired by the spouses is community property.  So the conveyance must be clear enough to overcome the presumption if they do not want the title to be community property.  We usually recommend adding “…and not as tenants in common and not as community property.”

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com<mailto:j.mccrady at pstitle.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>] On Behalf Of Eric Nelsen
Sent: Monday, September 17, 2018 2:38 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Deed to husband and wife- JTWROS?

Correct, to create JTWROS with husband and wife you must have deed to them "as joint tenants with right of survivorship." Merely designating them as "husband and wife" does not create a right of survivorship. In fact, in most instances it doesn't even create a presumption that the property is community property of the spouses--it could still be the separate property of one of them.

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

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Anessa Novasio
Sent: Monday, September 17, 2018 11:00 AM
To: WSBA Real Property Listserv
Subject: [WSBARP] Deed to husband and wife- JTWROS?

Greetings,

 My understanding is that a deed with the grantees as husband and wife does not automatically create a joint tenancy with right of survivorship.

So in order to have a JTWROS one would need a quit claim deed specifying to X and Y as husband and wife as joint tenants with right if survivorship per RCW  64.28.010.  Is that correct, or is it enough to say to X and Y as husband and wife??

Thanks in advance!
Anessa
--
Anessa Novasio, Attorney at Law, PLLC
5623 Rainier Ave S
Seattle WA 98118
phone: (425) 954-7570
fax: (206) 260-9128
www.slidingscalelaw.com<http://www.slidingscalelaw.com>

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Anessa Novasio, Attorney at Law, PLLC
5623 Rainier Ave S
Seattle WA 98118
phone: (425) 954-7570
fax: (206) 260-9128
www.slidingscalelaw.com<http://www.slidingscalelaw.com>

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