[WSBARP] Establishing that surviving spouse is sole owner of real property

[Inge Fordham]

Jon,

I agree with your analysis, though I have had title companies require clients to clear the cloud on title created by the community property presumption as to the second marriage.  The argument is that although the deed was in H’s name only, the status of the property can change when there is a community debt (i.e., a mortgage) and community funds were used to pay the same.  In that case, recording a certified copy of the death certificate and a LOPA (in your case, for W2) was sufficient.  This is assuming there will be no probate for W2.

Best regards,


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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com>

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From: <wsbarp-bounces at lists.wsbarppt.com> on behalf of Jon Fritzler <FritzlerLaw at outlook.com>
Reply-To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Date: Monday, January 25, 2021 at 9:52 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Establishing that surviving spouse is sole owner of real property

Real property gurus:

Client and first wife (W1) acquire real property as husband and wife.  W1 dies. There is no probate of W1’s estate. W1’s CP interest in the property passes to client pursuant to a Community Property Agreement between client and W1.

Client remarries. The most recent vesting deed remains the deed to client and W1.  Client and W2 take out a loan against the property and sign a deed of trust in favor of lender. Loan is paid in full and a deed of reconveyance is recorded. W2 dies.

I plan to record a Lack of Probate Affidavit with CPA attached in order to document that client became the sole owner of the property when W1 died.   Is this sufficient to establish that client is now the sole owner or do I need to record something regarding W2?  I’m thinking not since the property became client’s separate property after W1 died and would have remained his separate property throughout his marriage to W2 despite the fact that W2 signed the deed of trust for the loan?

Sincerely,
Jon M. Fritzler
Attorney at Law
717 E. 22nd St.
Vancouver, WA 98663
Tel. 360.818.4431
Eml fritzlerlaw at outlook.com<mailto:fritzlerlaw at outlook.com>

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