[WSBARP] Deed v Lack of Probate Affidavit

Tue May 2 14:46:07 PDT 2023

Agree with Spencer, Bryce, and Christopher. I think a Lack of Probate Affidavit does no more (and no less) than insert some attested facts into a document in the public record which, if correct, would tend to show how RCW 11.04.250 (and/or a community property agreement) has operated to transfer a decedent’s real property to the heirs at law. Or if an unprobated Will is involved, the LOPA shows, if the will were to be probated and found valid, who would end up with the real property interest.

The LOPA is only useful for trying to convince a title company that they should insure title without requiring a probate. It is not a lawful instrument that actually conveys title. The LOPA creates no actual rights in the property that a person named in it could enforce.

If a probate is started (or an adjudication of intestacy or testacy) and the court adjudicates a different outcome, that will always prevail over a LOPA.

Sincerely,

Eric

Eric C. Nelsen
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Stromberg, Spencer
Sent: Tuesday, May 2, 2023 2:22 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Deed v Lack of Probate Affidavit

I agree with Chris and Bryce that an LPA is effective only to provide notice that title transferred by operation of law - it does not itself convey title. I may be in the minority, but I think title companies use LPAs too liberally, and they really are only appropriate to clarify the rights of surviving spouses with regard to community property or heirs at law where there is no Will (although I don't really like them for non-spouses). The fact that there is a statute and a WAC authorizing the use of LPAs in other scenarios for a REET exemption does not resolve the fact that an LPA doesn't convey title or constitute administration of the estate under any statute that I'm aware of. Where there is a Will, I think RCW 11.04.250 requires probate, even if the devisees are the same as if the decedent were intestate.

Spencer A. W. Stromberg
Attorney at Law

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On Tue, May 2, 2023 at 2:17 PM Bryce Dille <Bryce at dillelaw.com<mailto:Bryce at dillelaw.com>> wrote:
That the affidavit does not transfer a title, but establishes that there is a descedent and that there are heirs under the laws of dissent and distribution, and who they are in that title automatically vests in those heirs by virtue of RCW 11.0 4.250 and therefore no deed is required.
Bryce H. Dille
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On May 2, 2023, at 1:57 PM, Mark Anderson <marka at mbaesq.com<mailto:marka at mbaesq.com>> wrote:

I’ve gotten some conflicting and/or inconclusive input in response to this question.
Is a Lack of Probate Affidavit (LPA) effective to convey fee simple title?  If your answer is “yes,” please explain how it meets the requirements for a Deed under RCW 64.04.010.
Thanks.
Mark B. Anderson
ANDERSON LAW FIRM PLLC
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Tacoma, Washington 98402
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