Can I Subdivide Without The Bureaucracy? Consider Testamentary Subdivision
Subdivision of property in Washington State is, generally speaking, highly regulated, and has been for many decades. For Many owners of potentially subdividable land find themselves deterred from going through the process because of how onerous it is. Subdivision can cost a lot and take a while. Both state and local governments want to protect the public interest by preventing traffic congestion and promoting the orderly and efficient use of land. RCW 58.17 therefore sets forth various requirements and procedures relating to subdivisions at the state level.
However, the legislature has long enshrined a lesser known exception to the restrictions on land subdivision, sometimes known as “testamentary divisions” or “testamentary subdivisions”. Under RCW 58.17.040(3), the normal restrictions do not apply to “Divisions made by testamentary provisions, or the laws of descent.” In layman’s terms, this means that it is possible to subdivide property without going through the normal subdivision process, if the property gets subdivided in connection with being passed to heirs upon the owner’s death. The case law in this area of the law is only partially developed, but the following are some of the principles so far established:
- While it is prudent to mention the intention to subdivide in the owner’s will, the failure to do so or the failure to have a will at all will not preclude the use of the testamentary subdivision exception to get around normal subdivision procedures. Heirs who have jointly inherited property can agree amongst themselves to a testamentary subdivision, so long as they collectively own the entirety of the property that will be subdivided.
- The property inherited cannot be a partial interest; it must be complete ownership of the entire property that will be subdivided. For example, if the decedent only owned a 50% interest in the property, the decedent’s heirs will not be able to use the testamentary subdivision exception, even if the heirs have separately acquired the rest of the interests in the property.
- Perhaps most importantly, the creation of a lot through the testamentary subdivision exception, even though “legal,” does not necessarily mean it is buildable. To be buildable, the lot must still comply with development standards, including access, zoning, and environmental regulations.
Even though testamentary subdivisions are not necessarily a “silver bullet” to render non-buildable land buildable, they can nevertheless be a highly valuable tool to accomplish an initial subdivision of property without the same bureaucracy and expense one would normally experience.
The lawyers at Beresford Booth have a wealth of experience in handling estate planning, probate, and real estate matter. Whether you are making plans for your heirs, or you are going through the probate process through a loved one, or you inherited property and want to maximize its value, we would be happy to assist you.
To learn more about Can I Subdivide Without The Bureaucracy? Consider Testamentary Subdivision, please do not hesitate to contact us at info@beresfordlaw.com or by phone (425) 776-4100 for assistance.
