[WSBARP] Deed Conveying Fee Simple Determinable
Matt Yates
matt at englishandmarshall.com
Tue Oct 1 15:27:43 PDT 2019
Thank you, Eric. Client was thorough and has a prenuptial agreement in place. That is a detail I should have included. I will think about whether an RLT is an appropriate option.
Matthew D. Yates
Attorney at Law
Yates Marshall, PLLC
10000 NE 7th Avenue, Suite 200
Vancouver, WA 98685
Phone: (360) 449-6100
Fax: (360) 449-6111
matt at englishandmarshall.com
www.yatesmarshall.com
From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Tuesday, October 1, 2019 3:09 PM
To: WSBA Real Property (wsbarp at LISTS.WSBARPPT.COM)
Subject: Re: [WSBARP] Deed Conveying Fee Simple Determinable
This very common scenario is usually much more complicated than most clients think. The rights allocation between surviving spouse and decedent's daughter generally need far more spelling out than can be done with a simple Will or deed provision. Based on litigation I have handled, where virtually every one of these issues has become a bone of contention after the death, here's my list that I have compiled to think about when trying to draft Will provisions for a post-death occupant of a house. Note, this list was done with reference to an unmarried partner surviving the house's owner; so if the house in your case is community property of a married couple, you will have to work through exactly what the testator can actually control in a Will disposition.
Note also that even if the client's name is the only name on title, that does not determine whether or not the house is community or separate property. If the house was acquired during marriage (except by inheritance or gift) it will be presumed to be community property even if it's in his name only. The spouses may need to sign an agreement as to status of property that specifically agrees that the house is his separate property only, and remains his separate property in future, and wife waives any right to reimbursement to the community or to her for use of community funds to maintain it or pay related expenses.
Another possibility would be to put the house in a revocable living trust, with both spouses as trustees, that becomes irrevocable upon husband's death, and provides that the house will go to daughter at death of second spouse. But some of the issues below will still be relevant.
Issues/notes to consider:
gift is only a right to occupy and is conditioned on fulfilment of all conditions herein. right to occupy is not assignable and may not be shared except for casual overnight visiting guests.
gift includes right to occupy without payment of rent during pendency of probate, but during pendency of probate the beneficiary must cooperate in allowing access to the property to the full extent the PR finds it necessary or convenient, at any time, upon 12 hours' oral or written notice or no notice in case of emergency.
gift is not a life estate. the gift is intended solely as an accommodation to my partner to allow her/him to continue to live at the property where we lived together. my intent is for all value of the real property to pass to my residue heir subject only to this limited right to occupy which has no market value, for the full value of the property to be preserved for the residue heir, at occupant's expense during occupancy, and without any financial burden on my estate or residue heir during occupancy.
right to occupy is not exclusive as against the estate (not residue heir) retains rights to enter and inspect to the same extent as a tenant-in-common, and estate may store tangible personal property that belonged to decedent at time of death until probate is closed.
right to occupy belongs to partner only and may not be extended to any overnight guests for longer than seven (7) days out of any six (6) week period; provided, partner may have a paid in-home licensed and certified caregiver
occupancy defined as: actually occupying the home on an overnight basis for at least five weeks out of every ten weeks [except winter snowbird? except up to 90 days if hospitalized or in convalescent care?].
estate has a right to maintain exterior surveillance cameras and other equipment to keep house secure and monitored.
must pay for reasonable maintenance and repair. scope of reasonable maintenance and repair includes without limitation maintaining roof secure from leaks; maintenance of exterior envelope against water leaks; repair or replacement of refrigerator, oven/range, washer/dryer, microwave; regular mowing and trimming of yard and curtilage; [etc.]
must pay all property taxes when due.
must pay all utilities when due.
must pay for and maintain homeowner insurance for full replacement value of the house, naming residue heir as insured; shall cover for fire, and flooding if necessary, but not responsible for earthquake coverage; shall include inflation rider to maintain full coverage; occupant to select the company with residue heir's approval, which approval shall not be unreasonably withheld.
residue heir has right to direct access to and communication with insurer
must pay mortgage?
if estate has insufficient other assets to pay all costs of administration and lawful claims against the estate, then estate may sell the house and substitute a gift to occupant calculated as $X per year by actuarial table of occupant's life.
residue heir to have right to routinely inspect the property no more often than semi-annually upon 48' hrs notice to occupant, and additional right to enter at any time without notice in emergency to preserve property value
residue heir right to receive annual accounting relating to payments, maintenance and repair
notice of default and opportunity to cure, residue heir to have right to issue
residue heir to have right to use unlawful detainer procedure for failure to meet requirements, award of atty fees to prevailing party
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 Matt Yates
Sent: Tuesday, October 01, 2019 2:34 PM
To: WSBA Real Property (wsbarp at LISTS.WSBARPPT.COM<mailto:wsbarp at LISTS.WSBARPPT.COM>)
Subject: [WSBARP] Deed Conveying Fee Simple Determinable
Listmates:
Estate planning client wishes to leave his real property to his wife so long as she continues to reside there and then it reverts to client's only daughter. It is only client on title to real property. Wife is not mother of client's daughter and wife is agreeable to client's intent. In fact, wife made clear that she intends to move if maintaining the real property becomes a burden provided she survives client. Thinking ahead, I am trying to figure out how Personal Rep's deed should read when the time comes for probating client's estate. I can certainly articulate the "to wife so long as she continues to reside there" part but I must admit I have never given much thought to the reversionary interest. Is there a particular way I should word the reversionary interest so as to avoid pitfalls or confusion?
This may be seeking an answer from the title company folks that frequent the listserve since that may be the ultimate answer to the question which is, what will title company insure if wife moves out and client's daughter wants to sell?
If you are willing to share, any examples are welcome.
Thanks,
Matt
Matthew D. Yates
Attorney at Law
Yates Marshall, PLLC
10000 NE 7th Avenue, Suite 200
Vancouver, WA 98685
Phone: (360) 449-6100
Fax: (360) 449-6111
matt at englishandmarshall.com<mailto:matt at englishandmarshall.com>
www.yatesmarshall.com<http://www.yatesmarshall.com>
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