Washington State Transfer on Death Deed and Community Property Agreements Explained

Probate is a public, court-supervised process that can take six months to two years in Washington. For many families, the highest priority after learning a loved one has died is finding out whether they can avoid opening a probate case at all. Washington offers two distinct tools that can transfer real estate outside probate: the Transfer on Death (TOD) deed and the Community Property Agreement (CPA). They work in fundamentally different ways, apply to different situations, and have different recording requirements. Confusing them leads to planning mistakes and estate administration problems.

Washington State Transfer on Death Deed

A Transfer on Death deed — sometimes called a beneficiary deed — allows a property owner to designate who receives their real estate at death. The deed is recorded during the owner's lifetime but has no legal effect until death. Until then, the owner retains full control: they can sell the property, mortgage it, or revoke the deed entirely.

Washington recognizes TOD deeds under RCW 65.20. When the owner dies, the property passes directly to the named beneficiary by operation of law, without probate court involvement.

How to Create a Valid TOD Deed in Washington

A Washington TOD deed must:

• Be in writing and signed by the owner
• Clearly identify the property by legal description
• Name the beneficiary or beneficiaries
• State that the transfer takes effect at the owner's death
• Be executed with the same formalities as any Washington deed (notarization)
• Be recorded with the county auditor before the owner's death

The recording requirement is critical. A TOD deed that is never recorded is legally ineffective. The deed must be in the county auditor's records before the owner dies.

What Happens After the Owner Dies

The beneficiary does not need to go through probate to claim the property, but they do need to take formal steps to clear title. Typically this involves:

1. Recording a certified copy of the death certificate with the county auditor
2. Filing a Real Estate Excise Tax (REET) Affidavit with the county auditor (the transfer is typically exempt from the actual tax, but the affidavit is still required as a regulatory filing)

The title transfer happens automatically at death, but the documentation step is necessary to make the transfer visible in the public land records. Without recording these documents, title companies will not insure the property and the beneficiary cannot sell or mortgage it.

Limitations of TOD Deeds

A TOD deed only transfers the specific property named in the deed. It does not affect other assets — bank accounts, vehicles, personal property, or other real estate.

If the named beneficiary dies before the property owner and no alternate beneficiary is named, the deed fails and the property falls back into the estate, requiring probate. This is one reason estate planners often recommend naming contingent beneficiaries in a TOD deed.

TOD deeds are also revocable at any time during the owner's lifetime by recording a revocation or a new deed with the county auditor. This flexibility is an advantage — the owner is not locked in — but it means the beneficiary has no guaranteed interest until the moment of death.

TOD Deeds and Medicaid Recovery

A potential complication: DSHS (the Washington state Medicaid agency) has taken the position that assets transferred via TOD deed may be subject to Medicaid estate recovery if the decedent received Medicaid long-term care services after age 55. Washington's Medicaid estate recovery program can reach nonprobate assets in some circumstances. If the decedent received Apple Health (Medicaid) funded care, consult with the DSHS Office of Financial Recovery before assuming a TOD deed transfer is fully protected.

Community Property Agreement: The Married Couple Alternative

A Community Property Agreement (CPA) is a contract between spouses or state-registered domestic partners — it is not available to unmarried individuals or non-partners. A properly executed CPA converts all community property into property that automatically passes to the surviving spouse at the first death, bypassing probate entirely.

Washington is a community property state, which means property acquired during marriage with earned income is generally owned equally by both spouses. A CPA takes the further step of specifying that upon the death of the first spouse, the surviving spouse takes the entire community estate outright.

Executing a Valid CPA

A Community Property Agreement must be:

• In writing
• Signed by both spouses or domestic partners
• Acknowledged before a notary

Unlike a TOD deed, a CPA typically covers all community property — not just specific real estate. It functions like a built-in probate avoidance mechanism for married couples.

Recording the CPA During Life

A CPA does not need to be recorded to be valid between the spouses. However, to put third parties — title companies, banks, county auditors — on notice of its existence, it is strongly advisable to record the CPA with the county auditor while both spouses are living. Recording costs a nominal fee based on the county's recording rate.

What Happens After a Spouse Dies

When the first spouse dies, the surviving spouse presents the CPA and a certified death certificate to the relevant institutions:

• Real estate: Record the certified death certificate plus a Real Estate Excise Tax (REET) Affidavit with the county auditor. The surviving spouse's name becomes the sole name on the title.
• Bank accounts and financial accounts: Present the CPA and death certificate to the institution. Account procedures vary — some banks require their internal forms.

The county auditor charges a recording fee. Under current Washington law (RCW 36.18.010), the base fee is $5 for the first page with additional per-page charges, though pending legislation (House Bill 2067) aims to cap these fees at the auditor's actual cost or $30, whichever is less.

Limitations of a CPA

A CPA only covers community property. It does not automatically transfer:

• Separate property (property owned before marriage, or received as individual gifts or inheritance during marriage)
• Property titled solely in one spouse's name that is separate property

If the decedent owned separate property, it still goes through probate or passes via a will, TOD deed, or other nonprobate mechanism. A CPA is most powerful for couples who have commingled all their assets as community property and held real estate jointly.

A CPA also does not protect community property from Medicaid estate recovery. If the deceased spouse received Medicaid-funded long-term care, DSHS can still assert a recovery claim against the estate, even though the property passed via CPA.

TOD Deed vs. CPA: Which One Applies to You

Neither tool eliminates the need to address separate property, large personal property estates, or creditor claims. For estates with complexity — business interests, multiple properties, potential Medicaid liens, or out-of-state property — a formal probate or a revocable living trust may be a more comprehensive solution.

Whether a TOD deed, a CPA, or formal probate is the right path depends on how the decedent's assets were held. The Washington Probate Process Guide covers all three scenarios — including what to do when a TOD deed or CPA doesn't cover everything — so you can map the correct path before taking any legal steps.

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