[WSBARP] TIC or JTWROS?

Thu Sep 12 10:46:10 PDT 2019

Is the following not true?

Husband can devise one-half of the community property, but not necessarily
one-half of each asset.  The estate can choose to distribute to the wife her
one-half interest in the community property using disproportionate asset
divisions.  See RCW 11.98.070(15); Estate of Ehlers, 80 Wn. App. 751, 763
(1996); see also Estate of Westall, 4 Wn. App.2d 877 (2018) (spouse can sell
deceased's interest in community property with court approval despite
contrary provision in deceased's will).   The will does not change this.
Further, the wife has a right to administer the community property.  See RCW
11.28.030.

RCW 11.04.250 would vest all of the community property in the surviving
spouse absent a will of the deceased that says otherwise, which apparently
is the case here.  See Estate of Haviland, 117 Wn.2d 68, 79-80 (2013).

So a claw back would be required only if needed to distribute one-half of
the total community estate to the trust.

                Steve Brandli

                Brandli Law PLLC

                Friday Harbor, Washington

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Thursday, September 12, 2019 9:36 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] TIC or JTWROS?

I agree you need to claw it back; the husband's half interest should be
transferred into the trust. Though if the Will/Trust terms allow it, I
suppose you could instead make an alternative agreement with the surviving
spouse, to other assets of equivalent value to put into the trust as a
substitute.

Some technical supporting points that don't change the result:

If a parcel of real property is community property between two living
spouses, it's not governed by tenant in common rules. Instead, management
and control is governed by RCW 26.16.030
<https://app.leg.wa.gov/RCW/default.aspx?cite=26.16.030> . The actual name
on the deed, even if it's only in one spouse's name, doesn't actually matter
much except for some nuances relating to notice to third parties; see e.g.
RCW 26.16.095 and RCW 26.16.100
<https://app.leg.wa.gov/RCW/default.aspx?cite=26.16&full=true#26.16.095> .
See also In re Estate of Borghi, 167 Wn.2d 480, 219 P.3d 932 (2009), which
states that the names on the deed don't really mean that much when it comes
to determining characterization of the property as separate or community.

But once the first spouse dies, real property immediately vests in the
surviving spouse as the heir at law to all community property, RCW 11.04.250
<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.250> , but subject to
all debts, etc., of the decedent, and if a probate is commenced the PR ends
up with control and can effectively divest the spouse.

When the probate commences it acquires jurisdiction over the entirety of
community property. The death of a spouse terminates the marital
relationship and the "marital community." Bank of Montreal v. Buchanan, 32
Wn. 480, 73 P. 482 (1903); see also Washington State Bar Assn. Community
Property Deskbook (4th ed. 2014) (hereinafter "CP Deskbook"), Sec. 4.11. At
death of the first spouse, the community "ceases to exist." Sutton v.
Hirvonen, 113 Wn.2d 1, 6, 775 P.2d 448 (1989). The first deceased spouse's
Estate accordingly has jurisdiction over all community property and
community liability, not just the decedent's half, in order to dispose of
all community matters. Ruth v. Dight, 75 Wn.2d 660, 670, 453 P.2d 631 (1969)
(claim against the community cannot be pursued against surviving spouse if
not also properly brought against the deceased spouse's estate); Gilliam v.
City of Centralia, 14 Wn.2d 523, 531, 128 P.2d 661 (1942) (deceased spouse's
Personal Representative, not the surviving spouse, has authority to pursue a
community claim); Magee v. Big Bend Land Co., 51 Wash. 406, 408, 99 P. 16
(1909) (administration of first spouse's estate had jurisdiction and
authority to sell the entire community real property). See also CP Deskbook,
Sec. 4.13.

So at the end of the probate the PR, in accordance with the Will and
assuming all debts, etc., have been paid, could distribute the decedent's
one-half interest in the community real estate into the Trust. At that
point, and no sooner, do the tenant-in-common rules apply, to the Trust and
the surviving spouse as tenants in common.

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 Mark Vohr
Sent: Wednesday, September 11, 2019 5:33 PM
To: wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> 
Subject: [WSBARP] TIC or JTWROS?

I have a title person in Jefferson county telling me it's common practice in
title companies when property is acquired as "husband and wife" (the type of
ownership - TIC or JTWROS is not indicated in the deed)  to pass the
ownership to the surviving spouse without any kind of conveyance since
Washington is a community property state, all they require is proof of death
of the spouse.  Title has always done this, we've used death certificates,
lack of probate affidavit's or actual probates as proof of death of the
spouse and then just vest the ownership in the surviving spouse.

My understanding is that a transfer to H&W (or any conveyance to more than
one person) without indicating the type of ownership creates a tenancy in
common, RCW 64.28.020.   In our case the decedent left his entire estate in
trust for his surviving spouse, which I would conclude would include his TIC
share in real property.  Title transferred it all to the surviving spouse.
It would seem we have to claw it back.  

Thoughts?  Thanks in advance.  

Regards, 

Mark

Ohana Fiduciary Corp.

A Washington Trust Company

Mark C. Vohr, J.D., CPG, Principal

PO Box 33710  Seattle, WA  98133

T:  (206) 782-1189 F:  (206) 782-1434

 <mailto:mcv at ohanafc.com> mcv at ohanafc.com       <http://www.ohanafc.com/>
www.ohanafc.com

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