BILL REQ. #:  S-4637.1 

READ FIRST TIME 02/06/04.   

     AN ACT Relating to property that has been specifically devised; and adding a new section to chapter 11.12 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 11.12 RCW to read as follows:
     (1) A specific devisee has a right to the specifically devised property in the testator's estate at death and to the following:
     (a) Any balance of the purchase price, together with any security agreement, owing from a purchaser to the testator at death by reason of sale of the property;
     (b) Any amount of a condemnation award for the taking of the property unpaid at death;
     (c) Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;
     (d) Property owned by the testator at death and acquired as a result of foreclosure or obtained in lieu of foreclosure of the security interest for a specifically devised obligation.
     (2) If specifically devised property is sold or mortgaged by a guardian or by an agent acting within the authority of a durable power of attorney for an incapacitated principal or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a guardian or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the lesser of (a) the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery; or (b) the testator's remaining net estate after payment of debts and claims with priority. It is not necessary to adjudicate the issue of incapacity for an agent to act under this subsection. An agent's actions that are within the authority of a durable power of attorney are presumed to be on behalf of the incapacitated principal. For the purposes of this subsection, "incapacitated principal" means a principal who is an incapacitated person.
     (3) The right of a specific devisee under subsection (2) of this section is reduced by any right the devisee has under subsection (1) of this section.
     (4) The provisions in subsection (2) of this section that relate to the actions of a guardian do not apply if, after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator's incapacity ceased and the testator survived the adjudication by one year.
     (5) A demonstrative gift shall not lose its demonstrative status for purposes of abatement under RCW 11.10.010 as a result of the operation of this section.