[WSBARP] TODD and Title update – further questions

[Dwight Bickel]

I have experience with the issue of inconsistency between a Will and a TODD. I worked as the Legislative Chair for the Washington Land Title Ass’n during the 2014 legislative session as the Bill to enact this was discussed in public hearings, including discussions with the drafter from the probate side of the RPPC. Later I prepared seminars to educate the title company personnel. Finally, such instances occurred during the subsequent years while I was acting as a title company underwriter.

An inconsistent Will, whether executed before or after a TODD is duly recorded, poses a risk of disagreement over the real property between the Will Devisee and the TODD Beneficiary. All deeds can be challenged based on the statutory requirements. A TODD has additional requirements [64.80.060], including an extra capacity requirement [64.80.050]. An inconsistent Will executed after a TODD was recorded is most risky, because RCW 64.80.030 could be interpreted that the subsequently-executed Will was “another instrument” and thus its inconsistency was intended as a revocation. Usually the inconsistency of a prior devise of “all property” would be deemed not inconsistent with a TODD, but a specific distribution of the same real property inconsistent with the TODD is evidence of intent by the Testator that the TODD was revoked.

Wills also can be challenged. Any probate action could bring in the TODD Beneficiary and litigate whether the decedent owned that real property and could determine the Will Devisee is entitled to the real property divesting the TODD Beneficiary.

My opinion is that the statutes clearly state that the TODD effectively transfers ownership of the real property immediately at the death of the grantor, and that the inconsistent Will does not vest any right, title or interest to the Will Devisee. A decedent’s estate does not include any right, title or interest that was conveyed prior to death. Wills take effect upon death; the prior signing date has no significance.

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?
Question #4: Does RCW 11.02.091 factor into any of this?

To specifically answer those questions, the statutes state a TODD is non-testamentary, and the TODD must be recorded prior to the death of the Grantor.

Purchasing from a TODD Beneficiary is more risky than a usual real estate transaction. Often that Beneficiary will not provide a statutory warranty deed. The TODD Beneficiary almost never received a title insurance policy that would defend against a claim by the Will Devisee or other heirs, or that would protect the Beneficiary from a claim based upon warranties. To reduce the potential risk of a disagreement, a prudent purchaser of that real property should seek either a quitclaim from the Will Devisee, or other evidence sufficient for estoppel, and an indemnity from the Beneficiary to warrant against potential claims. Evidence that confirms there is no disagreement would include actual occupation by the TODD Beneficiary (or rental) without apparent dispute from other heirs, or a probate inventory that confirms the heirs do not consider that real property as part of the Decedent’s estate.

Dwight A. Bickel
Real Property Title Advisor
Washington Title Professional
Dwight at dwightbickel.com<mailto:Dwight at dwightbickel.com>
http://dwightbickel.com
206-484-1976
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