Question re: property title

Discussion in 'Homesteading Questions' started by barbarake, Nov 26, 2004.

  1. barbarake

    barbarake Well-Known Member

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    Oct 23, 2003
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    Upstate SC
    Hi all - Brief synopsis. My mother passed away in late September. She owned a house - no mortgage. The house was originally my step-fathers. She moved in with him and sold her house. They lived there until he passed away in 2000.

    When he passed away, it was a bit of a mess. He was German - hadn't updated his will in 20 years - had disinherited one of his two natural children - owned property in Germany, etc. When the estate was probated, my mother got the house here and his daughter got all the property in Europe.

    I can go to my county's website and the house is clearly in my mother's name. No problem there. She's on record as the owner, she's paid the taxes for several years, etc. (She also paid off the $20,000 mortgage that was outstanding when he died if that makes a difference.)

    Is that different from the 'title'?? We're putting the house up for sale now and I don't want to be in the position of having a buyer and then finding out there's title problems at the last second. How would we go about checking whether the title is clear?? I understand that there are 'title insurance' companies - can I find/contact one myself or do I have to go through a bank or lawyer??

    Any information/suggestions would be greatly appreciated. Thanks.
     
  2. Windy in Kansas

    Windy in Kansas In Remembrance

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    South Central Kansas
    You are wise to begin the process of having the "abstract" brought up to date. Typically a title company is hired to do the abstracting work. They abstract, i.e. remove all entries from courthouse records that pertain to the property, clear back to the origin or entry as to where the property came from such as from King Richard II conveyed to ?? for ?? pounds sterling.

    Every mortgage and release will be on the property. If the land was leased for mineral rights those rights will be recorded and later released of their is not ongoing production.

    While it is a fairly simple process it is time consumng and it must be precise without error to give a complete legal title.

    As an example my attorney was looking over the title to some property I was about to purchase and he found an error in the legal description, it did not agree with the surveyor's description. During the previous sale an improper description was used and was said to convey a small portion of land that the seller didn't own legally. The previous title description had to be worked out before we proceeded.

    Often today "abstracts of title" are not used, only title insurance that warranties the title of ownership to be proper and correct, and therefore the seller can legally sell what is described.

    An abstract can be costly as often the charge is so much per record entry. However title companies often have the previous abstract and can begin from it and merely bring the abstract up to date. In your case perhaps with title conveyance to the man, a mortgage recording, conveyance to your mother, mortgage relase, and probably the probate records for the deceased. Not a lot of entries in order to bring an abstract up to date.

    In my opinion you are better to leave this job to professionals. If you should do the work and there is a flaw you may be held accountable down the road at considerable legal expense.

    Some might say to sell by "quit claim deed" to avoid this. I was told that a quit claim deed merely conveys your interest in the property to another. However you may not have any legal interest in the property, only think you do if prior abstract work has not been done. Result, you are sued for selling something you didn't even own.

    Thanks for looking ahead and doing it correctly. ALWAYS have an attorney look over purchase or sales paperwork and DO NOT RELY on title companies or real estate companies.
     

  3. RMShepp

    RMShepp Active Member

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    Location:
    WV
    It's hard to tell from the information you provided. Was your mother mentioned in the 20 yr old will? When they got married did he change the deed to include her? Has his estate been probated? The easist thing to do might be to go to your county clerk (or equivalent) and ask for his/her help. The results of that conversation might indicate if you need a lawyer or not.

    When he passed away, it was a bit of a mess. He was German - hadn't updated his will in 20 years - had disinherited one of his two natural children - owned property in Germany, etc. When the estate was probated, my mother got the house here and his daughter got all the property in Europe.

    I can go to my county's website and the house is clearly in my mother's name. No problem there. She's on record as the owner, she's paid the taxes for several years, etc. (She also paid off the $20,000 mortgage that was outstanding when he died if that makes a difference.)

    Is that different from the 'title'?? We're putting the house up for sale now and I don't want to be in the position of having a buyer and then finding out there's title problems at the last second. How would we go about checking whether the title is clear?? I understand that there are 'title insurance' companies - can I find/contact one myself or do I have to go through a bank or lawyer??

    Any information/suggestions would be greatly appreciated. Thanks.[/QUOTE]
     
  4. Hoop

    Hoop Well-Known Member

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    Northern Wisconsin
    If the name on the deed is only that of your mother, I believe the property will have to go through probate.
    If the name on the deed is your mother and you, this is far better, as it won't have to clear probate. Its a simple matter to get the property in your name.

    To sell the property, it must be in your name.


    Someone suggested selling the property with a quit claim deed. Not feasible. Lending institutions regard the quit claim deed as a useless piece of scrap paper when it comes to protecting their investment.
     
  5. mary,tx

    mary,tx Well-Known Member Supporter

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    I disagree that an attorney is the way to go. Once you have paid for an Abstract of Title and paid an attorney however much he decides to charge for his opinion, that's all you have--copies of documents and his opinion.

    Title companies are professionals in land title for your state. They are the ones who would be certifying your Abstract of Title, for which you would also pay, and they likely know more about land title than the attorney. (My dad, who managed a title company for many years prior to his retirement, had attorneys call him for advice.) When you get title insurance, they do the same work plus examining the title--telling you everything you need to know, AND it is insured. Their attorneys will be paying for any mistakes, not you through yours.

    Secondly, you will most likely be required to furnish title insurance to the buyer at time of sale anyway. It has been my experience that an attorney will only muddy the water and charge you as much as he can for the privilege.

    Since the estate has been through probate, I would imagine that your mother's title is good. Were probate documents filed in the county where the property is located? Are you her only heir? For you to sell the property, that is what you will need to prove. You may or may not need your own attorney for that.
    Did she leave a will, and has it been probated? Sometimes an Affidavit of Heirship is all that is needed to prove passing title to the heirs. The title company should be able to tell you what documents they will require, and order the documents drawn up for you if you do not need to go to probate court.

    If you will be using a realtor, you might start by asking him/her for advice on this.
     
  6. ChuckinVA

    ChuckinVA Well-Known Member

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    Virginia
    barbarake didn't mention if the house was being sold as a part of an estate, if so, it would not need to be in his/her name but that of the estate.When sold the executor/trix would be the legal signature required to sell the property. If it were an inheritance then title would change to barbarake, and then to the future buyer. A title search would be a good idea as any lender is going to require it and no sense taking a chance on finding a problem from 30 or 50 years ago that prevents a sale from closing.
    (note: I am not an attorney nor do I play one on TV. Please consult a real estate attorney for any legal advice pertaining to your situation ) :D

    PS: I believe title and ownership are one in the same.