[WSBARP] Grant of Easement - Death of One Spouse

[Rich Holland]

While this borders on the edge of things I know anything about, have you considered something like a ‘non-probate affidavit’?  I have not seen it used in this context but I know, for example, with a Deed in Lieu of Foreclosure in some situations a title company will underwrite without a probate if the affidavit can be completed by the heirs of the estate.  I know that fundamentally your question isn’t about title insurance but with an easement like this, ultimately it really is about insurability of whatever you draft.

Rich Holland **WARNING:  Friday brain in effect**

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Inge Fordham
Sent: Friday, September 16, 2022 2:51 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Grant of Easement - Death of One Spouse

Colleagues,

I have a case involving easement rights where the owners of 18 separate properties will need to sign an easement allowing my clients (owners of a 19th property) to use the easement over a private road.  As you can imagine, it is not particularly easy to work with 18 separate households.  I recently learned that one of the owners passed away.  The property in question is community property owned by a husband and wife.  The wife passed and the husband continues to reside at the property.  I have no indication that probate was commenced or that the cloud on title was otherwise cleared.  What is the effect of the grant of easement rights over that parcel if the surviving husband signs but the deceased wife does not?  Legally, I believe both owners on title need to sign, meaning the property would need to be transferred solely to the surviving husband before he could sign the easement.  If my clients elect to proceed with just one signature before the cloud on title is cleared, does that render the grant of an easement over that parcel invalid?  The delay and cost of commencing probate to have a PR/administrator appointed to clear title would be an expensive burden for my clients, not to mention a significant delay, if the family does not intend to probate the decedent’s estate.  My clients believe it is highly unlikely that anyone would ever go back and trace the fact that the deceased wife did not sign and may press to proceed with just the surviving husband’s signature before the cloud on title is cleared.  I will, of course, counsel my clients in accordance with the law.  Unfortunately, clients do not always follow advice of counsel…

Thank you,



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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
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