Wednesday, April 7, 2010

You can't rely on the Will as evidence of title!!

Here's a common situation, as evidenced by the several questions I've gotten over the last week, alone: A settlement is done to secure a loan to real property, and the only evidence of "ownership" of one or more parties is a copy of a Will, showing the "owner" is an heir to some interest in the real property. The loan is made, the deed of trust is executed by the heir and is recorded, and the title policy is issued to the lender to assure "ownership" of the heir.

But no title document is recorded in the land records showing "ownership." Faux pas!

The Will merely directs the PR or Special Administrator on how property should be passed. Upon death, the entire recorded interest of the decedent becomes estate property. Any interest stated in the Will must be passed out of the estate, by the PR, and that instrument must be recorded in the land records. Period. Reliance by the settlement company/title agent solely on the Will is just wrong! The Will merely evidences the decedent's intent....nothing more.