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.

A lien created after the death of the debtor may not be a lien, at all.

If you have a claim involving an estate, and claims against that estate, take a look at Elder v. Smith, No. 34, September Term 2009, released January 13, 2010. Here, the ex-wife of the decedent reduced a marital award of over $30,000 to judgment AFTER hubby died. The Orphan's Court ordered her to release the lien. Both appellate courts upheld the Orphan's Court determination that the post-death creation of a judgment lien for a pre-death claim is not a permitted way to enhance the priority of a claim against the decedent's estate.

The Court of Appeals went further, saying that it was behond the jurisdiction of the Orphan's Court to invalidate a judgment of the Circuit Court. The Orphan's Court can only administer the estate of the dead fellow, and can only elect to disregard the relative lien priority created by the Circuit Court judgment.

It appears that this factual situation may require litigation in BOTH the Circuit Court and the Orphan's Court.