Title transfer/deed names

29 Replies

I have a seller that has a deed in her mom and dad's name, which have been dead for a very very long time. The will she has puts the house in her possesion and she has been living in it since their death. All cash deal and my question is if we have the paperwork that proves the home was left to our seller will title accept this and push the deal through without her name on the deed or do we need to do probate court, lawyers etc to get the deed into our sellers name???? 

Hello probate.

Ok, not a problem. Do you happen to know the time frame and cost of this process for just the name to be transferred?

Ugh what a mess i don't know about California but in Florida the courts like all probate to resolve within 1-2 years of the death. Why wasn't the property transferred to her name back then?

Is the will an original? You will still have to go through probate and contact any other heirs, debtors etc to see who else might have a claim on the property, including the possibility of a newer will. 

By you I mean her and her attorney. There will likely be a certain amount of time you have to leave the case open, so others can make their claim against the property. These should be spelled out in CA state statues (i think)

Have fun!

@Mike Flora ... Not my area of expertise, but I am pretty sure titile company will want to see some evidence of appropriate estate administration. 

If seller was an only child and there was a will and estate creditors were properly notified, than this should be easy.

If seller has siblings, there was no will and/or there was no estate administration done....run away from this as fast as you can.

Stove

no siblings at all, living in the home for like 15 years now and states the will puts the property in her name. No other relatives at all. 

It doesn't sound like you should have to many problems. But it would probably be worth a consultant with an attorney before you get to far into negotiations. Or you can make a contingent offer based on getting clean title.

My contract has a contingency that my seller must provide clear title liens etc so my plan is to get it inked and pay for the probate process if necessary. Everything looks and sounds very straight forward and the quicker we get this done obviously the better. Is there a chance a title company would allow the sale with all the proper paperwork that shows the property to solely go to my seller yet in her dead parents name?

Why speculate and postulate what the title company would want to transfer title. Why not instead have a conversation with your title company, and if required provide them with the documents that exist, to see what they will require. That will provide a definitive answer to protect your transfer interests.

absolutely! Just wanted to see if anyone had any experience with this before and give me some great news cause it's a great deal!! I will get it done just would love to hear some great news on getting it done without probate/lawyers involve and a quick 48 hour prelim through title! Gonna have to wait till Monday to talk to my escrow/title officer. Thanks for the info guys

Many years ago I coined the term "pre-probate" for real estate investors to understand that probate is (for the buyer) a title problem.

If you are contracting to buy the asset, CA laws provide for a summary probate for a gross estate date of death value under $150K. Advantages are that its typically simpler and can be faster than a formal probate, however it still requires noticing DHCS (Medi-Cal) and other creditors, so from a practical standpoint will require six (6) month for your seller to get thru court. Hopefully.

Downside is that the attorney represents client (your seller) and, despite you choosing the attorney, they must advocate for their client, not you. Consequently, you stand to lose some level of control. 

Remember that after filing, whether a summary probate or a formal probate with full IAEA authority or limited powers, your seller will be solicited by others (maybe even me!). This means that your deal will be under threat by competitors. Also, if your seller cannot post bond and its determine one is required by judge, your seller will only get limited powers and your intended sale is now subject to overbid in open court.

Lots to know; lots that can go wrong, and much to learn about to control and work these deals. I've done hundreds.

K, thanks Rick. You always have great info for me!

Originally posted by @Rick H. :

Many years ago I coined the term "pre-probate" for real estate investors to understand that probate is (for the buyer) a title problem.

If you are contracting to buy the asset, CA laws provide for a summary probate for a gross estate date of death value under $150K. Advantages are that its typically simpler and can be faster than a formal probate, however it still requires noticing DHCS (Medi-Cal) and other creditors, so from a practical standpoint will require six (6) month for your seller to get thru court. Hopefully.

Downside is that the attorney represents client (your seller) and, despite you choosing the attorney, they must advocate for their client, not you. Consequently, you stand to lose some level of control. 

Remember that after filing, whether a summary probate or a formal probate with full IAEA authority or limited powers, your seller will be solicited by others (maybe even me!). This means that your deal will be under threat by competitors. Also, if your seller cannot post bond and its determine one is required by judge, your seller will only get limited powers and your intended sale is now subject to overbid in open court.

Lots to know; lots that can go wrong, and much to learn about to control and work these deals. I've done hundreds.

Mark,

Great insight shared above, thank you.

Now, as an exercise, a hypothetical question that might help someone in the OP positions: if the OP (buyer) were to loan the heir (unprobated heir seller) a personal loan with a security guarantee of her interest in the unprobated estate (including the real estate) and then filed the personal loan in a UCC filing and also against the persons credit and filed a notice against the property with such claim guarantee then would that proactive action help the buyer to fight off potential other investors who maybe circling the wagon?

I am Imagine the loan of course would need to be small enough to take a gamble, but large enough to make other investors take a 2nd look.

@Christopher Telles Who is Mark?

What are you using as the collateral?

If you're trying to buy the asset, you need a seller to be able to pass marketable (incurable) title. This means they need the capacity, power and authority as record owner or fiduciary.

I did a number of loans to heirs secured by the beneficial interest however I stopped in 1993 as it occurred to me that there were better ways to work these files than loans on fractional interests. Also, offsetting creditor claims, grumpy attorneys, disputes among heirs and outright fraudulent claimants caused me to re-think the whole business model.

A Better way to chill a sale is to tie up all the equity, not just a piece.

From my experience in Washington DC as long as their are no siblings to contest the will which it doesn't appear to be. It simply a matter of going through the probate process and having the deed transferred to her name. In DC, the process has much improved and took 6-8 months.
From my experience in Washington DC as long as their are no siblings to contest the will which it doesn't appear to be. It simply a matter of going through the probate process and having the deed transferred to her name. In DC, the process has much improved and took 6-8 months. You can file the papers yourself.

No siblings at all and in 2005 we have formal documents from a lawyer stating that since the daughter is the only heir and that she is living in the home already that she did not need to transfer the name and if she wanted to that it could be done through title when she sells the property. She was trying to save money and lawyer wrote up documents that backs up my sellers will that property solely belongs to her and she can sell with her parents name on deed and not hers. Not sure if I'm in the clear with this through title but I will find out tomorrow.

I know less than nothing about CA laws, but that seems odd.  That works for husband and wife here, when Both are on title.  But in your case, the daughter is Not on title, and as @Rick H. says, "the title holder is not available to execute the deed transfer".  You'll find out if the title co. has the same opinion I guess.

@Mike Flora

So you're saying that you have found a way to side step probate? I'd check the facts, or your understanding of the facts. I wish I knew a way to side step probate. 

yeah, it's very odd, she was living with her mom when she died and the lawyer obviously wrote up documents that stated she did not need to put the property in her name. Obviously the lawyer did not put anything through a probate process and we have official documents from him so hopefully we will be able to push it through title with no problems. She told my business partner she wanted to save money and not pay for title at the time and had the lawyer write something up. We shall see

not saying I side stepped anything, just saying she has documentation from a lawyer and we will see what title says.

@Mike Flora  You've touched on a topic both near and dear to me. Some attorneys don't know diddly squat!

I get say that because I (a non-attorney or 'lay person') write the annual article on foreclosure that's distributed to nearly 6,000 CA trust and estate attorneys for many years. 

Here's what happened to me in my early RE years (many, many years ago):

I came across an opportunity to buy a 2nd trust deed from former owners who had carried back the note as part of a seller financed transaction. The first was in default and the 2nd TD was non-performing.

Now I'd never bought a note and had no clue what documents were involved. Not knowing where to start, I found a local attorney (probably yellow pages). I paid him $150 for one hour consultation, however he admitted that he did NOT know what documents were required. Worthless expenditure of time and money. 

I told myself I would never let an attorney have the upper hand and set forth to become an expert in any endeavor that was my principal game. My later experience in title inspired me to study real estate title and a bit of serendipity lead me to become Rick The Probate Guy.

BTW, it's an Assignment that used to transfer and record change of iwnership of a trust deed note (or mortgage note). 

Originally posted by @Rick H. :

@Christopher TellesWho is Mark?

What are you using as the collateral?

If you're trying to buy the asset, you need a seller to be able to pass marketable (incurable) title. This means they need the capacity, power and authority as record owner or fiduciary.

I did a number of loans to heirs secured by the beneficial interest however I stopped in 1993 as it occurred to me that there were better ways to work these files than loans on fractional interests. Also, offsetting creditor claims, grumpy attorneys, disputes among heirs and outright fraudulent claimants caused me to re-think the whole business model.

A Better way to chill a sale is to tie up all the equity, not just a piece.

 Rick; I meant Rick but wrote Mark (Mark's in another thread). My bad, apologies!

Originally posted by @Rick H. :

@Mike Flora  You've touched on a topic both near and dear to me. Some attorneys don't know diddly squat!

I get say that because I (a non-attorney or 'lay person') write the annual article on foreclosure that's distributed to nearly 6,000 CA trust and estate attorneys for many years. 

Here's what happened to me in my early RE years (many, many years ago):

I came across an opportunity to buy a 2nd trust deed from former owners who had carried back the note as part of a seller financed transaction. The first was in default and the 2nd TD was non-performing.

Now I'd never bought a note and had no clue what documents were involved. Not knowing where to start, I found a local attorney (probably yellow pages). I paid him $150 for one hour consultation, however he admitted that he did NOT know what documents were required. Worthless expenditure of time and money. 

I told myself I would never let an attorney have the upper hand and set forth to become an expert in any endeavor that was my principal game. My later experience in title inspired me to study real estate title and a bit of serendipity lead me to become Rick The Probate Guy.

BTW, it's an Assignment that used to transfer and record change of iwnership of a trust deed note (or mortgage note). 

Thanks Rick, as you know I'm very knew to this business and want to do the right thing and get the deals. Is there any way this could just be a title name issue since a lawyer has already been involved with this? Instead of a whole probate process it is just a matter of name transfer on the deed at this point. The attorney felt it did not need probate and my seller just didn't want to spend the money to change the name on the deed so we have a will and documentation from the attorney ensuring property belongs to my seller. Could it just be as simple as an assignment through title to get the property into her name?? 

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