The Affidavit Lack of Probate (or “No Probate”) is an effective way to transfer title to Washington State Real Estate without a probate. It works equally as well for any Washington State property owner, whether a U.S. Citizen, U.S. Tax Resident, or Canadian Non-U.S. Resident.
The “Affidavit Lack of Probate” name is deceiving in that it only refers to the absence of a probate in the County where the real estate is located in Washington State. When, in fact, the Decedent’s estate may have already been probated in another jurisdiction where he or she was a resident. A common scenario involves a Washington State property owner, who resides in British Columbia, for example, and owns a vacation cabin at Lake Samish in Bellingham. Upon the death of the property owner it will be necessary to clear title to the Washington State property regardless of any probate in British Columbia. Whether or not the property owner had a Will, the Affidavit of Lack of Probate when recorded in Whatcom County will avoid a second (or “ancillary”) probate.
At the same time, the Affidavit of Lack of Probate can also be very effective when a Washington resident owns real estate in Washington and there is no need to file a probate. This scenario may involve a smaller estate, or even a larger estate, with Washington State property, when there are limited heirs, and no creditors. When the Affidavit of Lack of Probate is recorded it avoids a probate in the first place.
And in limited cases, the Affidavit of Lack of Probate is often the only way to avoid probate when the Decedent did not have a Trust, Joint Tenancy with Rights of Survivorship, Community Property Agreement or some other non-probate alternative.
Once the Affidavit is recorded with the County Auditor, the net effect is to vest title to the beneficiary(ies) named in the Decedent’s Will, or to the “rightful” or legal heir(s) if the Decedent did not have a Will. In order to determine the “rightful” heir(s) look to the Washington Intestacy Statute, RCW 11.04.015, which spells out the order of distribution.
Before recording the Affidavit of Lack of Probate it is important to comply with any U.S. Estate Tax obligations. A U.S. Estate Tax Return may have to be filed. And/or it may be necessary to obtain a transfer clearance certificate from the IRS.
It is recommended that the beneficiary(ies) or heir(s) consider buying title insurance to insure their vested interest in conjunction with recording the Affidavit of Lack of Probate. It should be noted that title insurance companies may request an Affidavit Lack of Probate be signed on behalf of the Estate (and/or by the heirs or beneficiaries) as a condition of issuing title insurance. And this requirement may mean there are in fact two Lack of Probate Affidavits. In many cases, the title companies do not record the Affidavit Lack of Probate but hold it internally. While this practice is becoming more common in the title insurance industry, it may be confusing to parties to the real estate transaction when there is a sale. In this case, it is recommended that a proper Affidavit Lack of Probate still be recorded so there is a document in the county records relating to the passing of a Seller, which in effect, clears title.
1. Avoids Probate.
2. Vests title in Washington State Real Estate to the beneficiary(ies) named in the Decedent’s Will, or the “rightful” legal heir(s) if the Decedent died without a Will.
3. Cost effective and should be less expensive than an ancillary probate.
4. Exempt from Washington State Real Estate Excise Tax.
5. Title Companies will normally insure the interest of the beneficiary(ies) or heir(s) when the Affidavit is recorded.
6. The beneficiary gets a full-stepped up basis for U.S. tax purposes, meaning that he or she assumes the fair market value of the real estate at the date of death in the event of a future sale or transfer.
1. Limited to transfer or vest title only in the true beneficiary(ies) or “rightful” legal heirs as defined by the Washington Intestacy Statute.
2. When there is a need to file a probate to: (a) access a safe deposit box; (b) deal with creditors and publish Notice of Creditors to impose a shorter time for unknown creditors to respond; (c) litigate on behalf of the Estate; (d) find heirs whom are not easily identifiable; (e) or for other compelling reasons.
The above list is not exhaustive. There are other pros and cons.
Further, other non-probate methods should also be considered, including a Trust, Joint Tenancy with Rights of Survivorship, and Tenancy in Common. I recommend you read my blog articles about the Transfer on Death Deed (“TODD”) Community Property Agreement, because these non-probate methods may be more advantageous.
The above is not intended to be legal advice but is general information provided as a courtesy.
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