[WSBARP] TIC or JTWROS?

Mark Vohr mcv at ohanafc.com
Thu Sep 12 16:57:01 PDT 2019 

Thanks Kaitlyn – yes I think your analysis is correct.  In my fact pattern there is a will.

Regards,

Mark

Mark C. Vohr
Ohana Fiduciary Corp.
Ohana Financial Services
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
mcv at ohanafc.com      www.ohanafc.com

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Kaitlyn Jackson
Sent: Thursday, September 12, 2019 11:50 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] TIC or JTWROS?

Isn't a presumption appropriate to refer to if and only if there's not evidence to the contrary? I would think that's why a title company would ask if there's a will before transferring the property automatically. The presumption would be appropriate in the absence of contradictory information. Those are my lame thoughts.

Kaitlyn

On Thu, Sep 12, 2019 at 11:44 AM Mark Vohr <mcv at ohanafc.com<mailto:mcv at ohanafc.com>> wrote:
Thanks John – always nice to have an opinion from title.  I agree with the analysis that a conveyance to H&W creates a presumption that the property is community property, but I also believe that community property can be held as TIC or JTWROS depending on what the vesting document says (or doesn’t say).  In other words, the character of the property, community or separate, and the ownership of the property, TIC or JTWROS are two separate and distinct things each requiring a separate inquiry and each separately impact the ownership rights that can be conveyed by a decedent.


Regards,

Mark

Mark C. Vohr
Ohana Fiduciary Corp.
Ohana Financial Services
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
mcv at ohanafc.com<mailto:mcv at ohanafc.com>      www.ohanafc.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ohanafc.com&d=DwMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=GWmlb6qOPL8fnanFHgIHH-Gc2t4v-id1-UBMUcAOmKE&s=0YKUGrOkUK1Vu5sV_GND6iQq4n8K6luSLmrsLdP8eXc&e=>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of John McCrady
Sent: Thursday, September 12, 2019 9:40 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] TIC or JTWROS?

I think every title company would require what we call a “Lack of Probate Affidavit” before vesting title in the surviving spouse.  On the lack of probate affidavit the surviving spouse is required to disclose whether the deceased had a will, and if so, we require a copy of the will for our review.  If the will leaves the property to someone other than the surviving spouse we require a disposition of that party’s interest.

But, somewhat contrary to your statement, the interest acquired by “A and B, husband and wife” is presumed by law to be community property, not TIC. RCW 26.16.030<https://urldefense.proofpoint.com/v2/url?u=https-3A__app.leg.wa.gov_RCW_default.aspx-3FCite-3D26.16.030&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=-G0Mj1xers1ckmqAuRD8bXMfed_Ni-L0FsgOuw_1PHA&s=rldTMfrI-ggO5BruUDxpJA_QLPpZzzvSZqgvg2du0Fc&e=>

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] 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
mcv at ohanafc.com<mailto:mcv at ohanafc.com>      www.ohanafc.com<https://urldefense.proofpoint.com/v2/url?u=https-3A__r.xdref.com_-3Fid-3Dx8C0jvIP028054-26from-3Dwsbarp-2Dbounces-40lists.wsbarppt.com-26to-3Dj.mccrady-40pstitle.com-26url-3Dhttp-3A__www.ohanafc.com_&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=-G0Mj1xers1ckmqAuRD8bXMfed_Ni-L0FsgOuw_1PHA&s=jAkIe8_CigLrdu5Zifuql2c7c9TnTt0kVLdzkbPfq-o&e=>

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Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
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