Wednesday, November 24, 2010

Tenancy by the Entireties Abolished under RCW 11.04.071

Recently, a local non-lawyer suggested that tenancy by the entireties was a mechanism that could be used to avoid probate through joint ownership. This is not so, as Washington abolished this type of a right of survivorship some time ago under RCW 11.04.071. While it may seem simple enough to transfer property by titling property in joint tenancy or vesting as husband and wife, and there is a statutory presumption that property held in common by spouses is community property, Washington Courts require more than mere deed language to ascertain the actual character of property as separate or community. In a 2009 case (Borghi), the Washington State Supreme Court stated the following, "More Importantly, even when a spouse's name is included on a deed or title at the direction of the property owner spouse, this does not evidence intent to transmute separate property into community property, but merely an intent to put both spouse's names on the deed or title." While some types of transfers, particularly the gift transfer, require additional documentation to qualify for our Real Estate Excise Tax Exemption, most transfers adding a spouse to a deed do not. In the end, you still need to consult with a lawyer to propertly assemble all the documentation to change or prove the character of property and the intent of given vesting language if that question will arise in a probate situation.