- January 03, 2005
- All Issuing Offices in Washington
- Update on Secret Probate Liens for Medical Assistance paid by the Department of Social and Health Services (?DSHS?)
In April of 2001 we issued Bulletin No. WA000051 to alert you to the enactment of RCW 43.20B.080. Under RCW 43.20B.080, DSHS has a "secret lien" on real property if DSHS paid for medical assistance for an individual who was 55 years or older. "Medical assistance" consists of "nursing facility services, home or community-based services, other services that the department determines to be appropriate, and related hospital and prescription drug services." The lien relates back to attach to any real property that the decedent had an ownership interest in immediately before death and is effective as of that date. We have recently learned that under Federal law (42 U.S.C. 1396p), DSHS is not allowed to impose this lien if the surviving spouse is lawfully residing on the property as their home. We have modified our procedures accordingly.
From now on, the following exception should be set up on every commitment/report that has:
- current vested owner's interest derived from a deed in the past year, signed by heirs or devisees of the former owner (insured or not);
- deed by surviving spouse;
- death but no probate;
- recent closed probate that was not solvent and DSHS had a creditor's claim filed with no release.
____. Possible lien against the Estate of ____________, deceased, in favor of the State of Washington, Department of Social and Health Services, for recovery of costs, if any, of medical assistance, pursuant to RCW 43.20B.080.
The exception may be eliminated if:
(a) you obtain reliable evidence that the decedent was under the age of 55 at the time of their death (the death certificate should disclose the decedent's age – do not rely on statements from friends or family of the deceased); or
(b) a close heir, personal representative or other person who has knowledge of the deceased's care executes a Lack of Probate Affidavit in the form attached hereto as Exhibit A, and the affidavit states that either: (i) the decedent did not receive assistance from DSHS or (ii) the decedent's surviving spouse lived on the property at the time of the decedent's death (Note: please use this revised Lack of Probate Affidavits for future transactions); or
(c) you obtain written confirmation from DSHS stating that no lien will be filed under the provisions of RCW 43.20B.080. This confirmation can be obtained from the Estate Recovery Section, D.S.H.S. Office of Financial Recovery, P.O. Box 9501, Olympia, WA 98507-9501 (1-800-562-6114). You should be prepared to provide the name, social security number and date of birth of the decedent. DSHS can often tell you on the phone, or within 24 hours, if a right of recovery (a lien) exists or not. If you fax them a letter and a copy of the exception (Fax number: 360-664-8410), they can write on it and fax it back. If medical assistance has been paid, it may take up to 2 weeks for DSHS to provide the exact amount required to satisfy the lien.
Please contact your Underwriter if you have any questions.
THIS BULLETIN IS FURNISHED TO INFORM YOU OF CURRENT DEVELOPMENTS. AS A REMINDER, YOU ARE CHARGED WITH KNOWLEDGE OF THE CONTENT ON VIRTUAL UNDERWRITER AS IT EXISTS FROM TIME TO TIME AS IT APPLIES TO YOU, AS WELL AS ANY OTHER INSTRUCTIONS. OUR UNDERWRITING AGREEMENTS DO NOT AUTHORIZE OUR ISSUING AGENTS TO ENGAGE IN SETTLEMENTS OR CLOSINGS ON BEHALF OF STEWART TITLE GUARANTY COMPANY. THIS BULLETIN IS NOT INTENDED TO DIRECT YOUR ESCROW OR SETTLEMENT PRACTICES OR TO CHANGE PROVISIONS OF APPLICABLE UNDERWRITING AGREEMENTS. CONFIDENTIAL, PROPRIETARY, OR NONPUBLIC PERSONAL INFORMATION SHOULD NEVER BE SHARED OR DISSEMINATED EXCEPT AS ALLOWED BY LAW. IF APPLICABLE STATE LAW OR REGULATION IMPOSES ADDITIONAL REQUIREMENTS, YOU SHOULD CONTINUE TO COMPLY WITH THOSE REQUIREMENTS.