Washington law, for title research

Washington transfer on death deed: the rules, from chapter 64.80 RCW

Every rule below is quoted from the Revised Code of Washington, chapter 64.80 or another official source, linked and checked on the date shown. General information, not legal advice.

What does a Washington transfer on death deed need to be valid?

RCW 64.80.060 names three things: the essential elements and formalities of a properly recordable inter vivos deed, a statement that the transfer to the designated beneficiary is to occur at the owner's death, and recording before the death in the public records of the auditor of the county where the property is located. In Washington the county auditor keeps those records.

The capacity needed to make or revoke one is the capacity required to make a will, under RCW 64.80.050. RCW 64.80.070 says the deed is effective without notice or delivery to, or acceptance by, the beneficiary during the owner's life, and without consideration. One use is barred outright: RCW 64.80.020 says the deed may not be used to effect a deed in lieu of foreclosure of a deed of trust. RCW 64.80.901 applies the chapter to deeds made before, on or after June 12, 2014, by a transferor dying on or after that date. RCW 64.80.040 calls the deed nontestamentary, and RCW 64.80.110 lets a beneficiary disclaim under chapter 11.86 RCW.

How is a Washington transfer on death deed revoked?

An instrument revokes a recorded deed, or any part of it, only if it is the right kind and properly recorded. RCW 64.80.030 makes the deed revocable even if it says otherwise, and RCW 64.80.080 lists what revokes a recorded one: a later deed of the same kind that revokes it expressly or by inconsistency, an instrument of revocation that expressly revokes it, or an ordinary inter vivos deed that expressly revokes it. The revoking instrument must be acknowledged after the acknowledgment of the deed it revokes and recorded before the owner's death with the auditor of the county where the deed is recorded.

Tearing up or marking the recorded deed does nothing: after recording, it may not be revoked by a revocatory act on the deed. A will is not on the statute's list. Where several people signed, one transferor's revocation does not affect another's interest, a deed of joint owners is revoked only by all joint owners living when the revocation is recorded, and a deed of community property signed by both spouses or both domestic partners is revoked only by both, unless only one of them is still living. Separately, RCW 11.07.010 revokes a provision for a former spouse by law, with no instrument, as described below.

What does the owner keep while alive?

The deed takes nothing from the owner. RCW 64.80.090 says that during the owner's life the deed does not affect the owner's right to transfer or encumber the property, does not affect a buyer or a creditor of the owner even one with notice of the deed, does not affect the owner's or the beneficiary's eligibility for any form of public assistance, creates no legal or equitable interest for the beneficiary, and does not expose the property to the beneficiary's creditors.

RCW 64.80.080(4) adds that the revocation section does not limit the effect of an inter vivos transfer of the property. RCW 64.80.100(1) applies its death rules only to property owned by the transferor at death. In search practice, that is why a title search reads the deed together with every later deed the owner recorded.

What happens when the owner dies?

RCW 64.80.100(1) sets the rules for property owned at death, except as that section, RCW 11.07.010 or RCW 11.05A.030 provide. A person not shown by clear and convincing evidence to have survived by one hundred twenty hours is treated as not surviving, under RCW 11.05A.030 and subject to RCW 11.05A.060. The property passes to the designated beneficiary in accordance with the deed, but only if the beneficiary survives the owner; the interest of a beneficiary who does not survive lapses. Concurrent interests pass in equal and undivided shares with no right of survivorship, and a concurrent share that lapses or fails for any reason passes to the other beneficiaries in proportion to their interests. RCW 64.80.010(3) defines a joint owner as one holding with a right of survivorship, not a tenant in common or an owner of community property. If the owner held as a joint owner and another joint owner survives, the property belongs to the surviving joint owner; if the owner is the last surviving joint owner, the deed is effective. The deed transfers the property without covenant or warranty of title, even if it says otherwise.

How does a transfer on death deed work with Washington community property?

It depends on whether the other spouse joined the deed. Under RCW 64.80.100(4), if a married owner or registered domestic partner signed alone, the owner's interest in the community property passes to the beneficiary at the owner's death. If both joined, the deed is not effective at the first death while the other spouse survives; it takes effect at the surviving spouse's death as to that spouse's interest at the time. RCW 26.16.030(3) separately says neither spouse or partner shall sell, convey or encumber community real property without the other joining in the deed. Neither section says how the two fit together, so that is a question for a Washington attorney.

Divorce has its own rule. RCW 11.07.010 revokes a provision made before a dissolution, invalidation or partnership termination that transfers a nonprobate asset at death to the former spouse or registered domestic partner, and the asset passes as if the former spouse had died when the decree was entered, unless the instrument expressly provides otherwise, a decree or court order requires the decedent to maintain a nonprobate asset and no other asset fulfills it, or the decedent could not have revoked it unilaterally right after the decree.

Does the beneficiary take the liens, including Medicaid recovery liens?

Yes, subject to chapter 65.08 RCW. RCW 64.80.100(2) says the beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens and other interests to which it is subject at the owner's death, including liens recorded within twenty-four months after the death under RCW 41.05A.090 and 43.20B.080. RCW 43.20B.080 directs the department to file liens, seek adjustment, or otherwise recover medical assistance correctly paid on a person's behalf, consistent with 42 U.S.C. 1396p, and RCW 41.05A.090 gives the authority the same duty for assistance it paid. For someone who was 55 or older when receiving it, subsection (3) of each reaches nonprobate assets for the listed services, and RCW 11.02.005(14) treats those as passing under a written instrument other than a will. Subsection (5) has the department waive recovery for undue hardship, and subsection (6) relates a lien back to attach to property the decedent held immediately before death.

Estate creditors can reach the beneficiary too. RCW 64.80.120 makes the beneficiary liable for an allowed claim against the owner's probate estate and for statutory allowances to a surviving spouse and children, to the extent RCW 11.18.200, 11.42.085 and chapter 11.54 RCW provide. RCW 11.18.200(1) also covers estate taxes and the fair share of administration expenses, subject to the rules in its subsection (2). In search practice, a title search on inherited Washington property reads the county records after the date of death, up to its run date.

What a title search checks after a Washington owner dies

A probate title search reads the chain of title and how title passed: any transfer on death deed recorded with the county auditor before the death, who signed it, any later recorded transfer on death deed, instrument of revocation or inter vivos deed it finds, any later conveyance by the owner, and the liens to pay on record as of its run date. Whether a divorce revoked a transfer is for the attorney on the estate; the report shows the record.

The Washington rules on this page, with their sources

Sources: RCW 64.80.020; RCW 64.80.030; RCW 64.80.050; RCW 64.80.060; RCW 64.80.070; RCW 64.80.080; RCW 64.80.090; RCW 64.80.100; RCW 43.20B.080; RCW 64.80.120; RCW 11.07.010; RCW 11.05A.030; RCW 64.80.010. Each row links the section it summarizes.

Questions people ask

More on how Washington property law shapes a title search: title research in Washington.