[WSBARP] TODD and Title update – further questions

Mon Jan 8 12:04:16 PST 2024

Dear All:

W executes Will, leaving "everything" to H so long as H survives W by 90 days.  After executing her Will, W executes and records a TODD (for real property owned by W as her separate property) in favor of a third party (related or not).  W subsequently dies.

I am aware that 1) the conveyance of real property is required to be by deed (RCW 64.04.010), that 2) under RCW 11.04.250, title to real property "shall vest immediately in his or her heirs or devisees" and "no person shall be deemed a devisee until the will has been probated," and that 3) a TODD is nontestamentary.  I am also mindful that, in this case, the TODD (i.e., the Deed) has already been recorded.

Question #1: If W’s death certificate and the REETA for the real property are recorded before the 90 day period and before H dies, how could the effect of the TODD be challenged in good faith?  What if the death certificate and the REETA are not recorded until later?

Question #2: Could the TODD be seen as being analogous to (and as effective as) a codicil to the Will?

Question #3: Prior to her death, could W execute a codicil to her Will that would address the effectiveness of any TODD that W executed and recorded after she executed her Will?  If so, do any of you have language that you have used for this purpose?  (I suppose this language could also be useful in drafting an original Will.)

Question #4: Does RCW 11.02.091 factor into any of this?  If so, how?

As always, thanks for your insights on this.

Mark B. Anderson
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Heather de Vrieze
Sent: 01/05/2024 2:06 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] TODD and Title update

It is a very blunt instrument, and while occasionally useful, not appropriate for many. I relay these experiences, including my own, and generally advise clients that this is may only be a useful tool in very specific circumstances, and generally only when the TODD deed matches testamentary distribution. So an only child who lives with parent and wants to keep home after parent dies, where there are few, if any other probate assets, might find this would work fine for them.

Heather S. de Vrieze
Attorney-at-Law
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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 Jan Kelly
Sent: Friday, January 5, 2024 10:15 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] TODD and Title update

I don't recommend them to clients anymore, due to situations like this one.

On Thu, Jan 4, 2024 at 4:19 PM Timothy Lehr <timothy at stileslaw.com<mailto:timothy at stileslaw.com>> wrote:
All,

I wanted to let the listserv know about a recent opinion I received from a title company.

Surviving husband had a Will that left everything to three kids, equally. He subsequently recorded a TODD as estate planning tool because he wanted one son to have a house, which son lived in with him. Husband passed and about 6 months later son decides to sell house. He records death certificate to have title transferred to him via TODD. At closing, title company is now asking for a copy of a Will, if any, and lack of probate affidavit. I contact them and ask why, and they say that it’s their new policy to ask for this. We get into it a little bit, and they say their legal department does not want to get into litigation with any other heirs of the estate. I ask “What if the Will says something different?” And they answer vaguely that it might cause a problem. They said the TODD statute is “too new” and “there is no case law on it” and they don’t want to get wrapped up in litigation.

Moral of the story, if the Will contradicts the TODD in any way, or even if it is silent as in this scenario, they may not insure title in TODD grantee. This seems crazy and would completely change the way many attorneys advise on TODDs as estate planning tools. Has anyone else heard of this?

Timothy C. Lehr
Attorney & Partner

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Jan Kelly, JD/MBA
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