When Does a House Legally Become the Heirs' Property in Washington?

Your mother died last spring. You and your brother have been paying the taxes and mowing the lawn, and now a neighbor wants to buy the house. The county records still show her name. Do the two of you own it yet, or does something have to happen first?

Under Washington law, her heirs have owned it since the moment she died. RCW 11.04.250 says that when a person dies owning real estate, title vests immediately in the heirs or devisees, and that no probate and no court order is needed for that to happen. But the same statute makes that ownership subject to the debts of the person who died and the costs of settling the estate, and it gives the heirs nothing in writing to prove it. That gap between owning a house and being able to sell it is where families get stuck.

What RCW 11.04.250 Actually Gives the Heirs

Title vests "instantly upon the death" of the owner, with no administration of the estate and no decree of distribution needed. RCW 11.04.290 confirms that the same rule covers community real property as well as separate property.

The statute also describes what the heirs can do with that title. Their right to possess the property, and to collect its rents and profits, is good against everyone except a personal representative, if one is appointed. Any heir can sue to recover his or her share from someone wrongfully holding the property, whether or not a probate has ever been opened.

Who the "heirs" are depends on whether there was a will. With no will, RCW 11.04.015 decides who inherits, as explained in what happens if you die without a will in Washington. With a will, the people named to receive real estate are called devisees, and RCW 11.04.250 contains an important limit on them: no person is deemed a devisee until the will has been probated.

The Strings Attached to Vested Title

Under RCW 11.04.250, title vests subject to the debts of the person who died, the family allowance, the expenses of administration, and any other charges the real estate is liable for under existing law.

Two consequences follow. First, a personal representative, once appointed, steps ahead of the heirs. RCW 11.48.020 gives the personal representative the right to immediate possession of all of the estate's real and personal property and the right to receive the rents until the estate is settled. A personal representative with nonintervention powers also has the power under RCW 11.68.090 to sell and convey the real property without a court order. If the estate needs money to pay its debts, the house can be sold for that purpose even though title "vested" in the heirs on the day of death.

Second, creditors do not disappear because nobody opened a probate. Under RCW 11.40.051, when no notice to creditors has been given, a creditor has 24 months after the date of death to present a claim. A personal representative who publishes and sends notice to creditors can shorten that window considerably for most claims. A mortgage raises its own questions, covered in who pays the mortgage on a house I inherit in Washington.

Why Owning It Is Not the Same as Being Able to Sell It

A buyer, a lender, and a title insurance company all rely on the public record. After a death, that record shows a deceased person as the owner and nothing more. RCW 11.04.250 makes the heirs the owners, but it does not identify who they are, confirm that there was no will, or show that the estate's debts have been paid. Someone has to put that on the record in a form others will rely on. There are a few ways to do it.

A full probate is the most complete. The court appoints a personal representative, who can deal with creditors and then sign a deed to the heirs or directly to a buyer. See how do I start the probate process for the first steps.

A court adjudication without a personal representative is a narrower route. RCW 11.28.110 allows a petition asking the court to adjudicate intestacy and heirship without issuing letters of administration, and RCW 11.20.020 allows a will to be admitted to probate without appointing a personal representative. Under RCW 11.28.330, the person who obtains that order must serve or mail a copy to each heir and each person named in the will within 30 days. The notice must include the statutory information and a copy of the will when applicable. Proof of service or mailing must be filed in the case. The applicant must also mail the adjudication, with the required identifying information, to DSHS's Office of Financial Recovery. If no one contests it within four months, RCW 11.28.340 treats the order as the equivalent of a final decree of distribution for the people who received notice. The same section says the heirs' rights remain subject to the prior rights of creditors.

A lack of probate affidavit is the least formal. The Department of Revenue's rule on inherited real estate, WAC 458-61A-202, describes it as a signed and notarized document declaring that the people signing are the rightful heirs, and listing their relationship to the person who died, the other heirs, the property, and whether there was a will. Under that rule, the affidavit and a certified death certificate document that a transfer by inheritance is exempt from real estate excise tax. The rule does not say the affidavit settles who the heirs are or cuts off creditors, and no court reviews it. Whether a title company will insure a sale that rests on one is the company's own decision.

One thing that does not work for a house is the small estate affidavit. RCW 11.62.010 applies to personal property, such as bank accounts and vehicles, not to real estate.

A Worked Example

Ruth, a widow, dies without a will, owning a paid-off house in Edmonds. She has three children: Sam, Tina, and Uli.

On the day Ruth dies, RCW 11.04.250 vests title to the house in her three children, and RCW 11.04.015 gives each of them an equal one-third share. No one has to file anything for that to be true.

A year later Tina wants to sell. The buyer's title company sees Ruth as the record owner. It will want to know who Ruth's heirs are, whether she left a will, and whether any creditor of her estate could still make a claim, since fewer than 24 months have passed and no notice to creditors was ever given. The three siblings own the house, but they need a probate, a court adjudication of heirship, or documentation the title company is willing to accept before a sale can close. And if Sam refuses to sign, his one-third interest does not go away.

How to Avoid the Gap

Owners can spare their families this problem while they are alive. A transfer on death deed, recorded before the owner's death, names who receives the property and puts that name in the public record.

For heirs who are already in the gap, the right path depends on whether there was a will, how long ago the death occurred, whether there are debts, and whether all of the heirs agree. The Law Office of Chad Foster can help you work out which path fits and get title to an inherited home cleared. Call 425.785.8679 to talk with a Snohomish County probate attorney.