Video

House Title Issues in Probate

Good morning, folks. It’s Andy Stautz at Stautz Law. I am a wills, trusts, and estates attorney, and today I’m talking about a common probate topic, which is, do you actually own the house?  

It seems like it should be an easy one to answer, but this is probably the single most common problem I see that brings people in for a probate administration or that makes people realize they need to do something.  

So, for real property, like houses, what matters is who has title, okay? And Title is a complicated system. It’s kept track of in these like property records, the land records of the county. So that’s the recorder’s office. And you’ll see it on property tax bills. And you’ll see it on, you know, a mortgage.  

Property Title Isn’t Automatic

What you need to realize is a lot of this isn’t automatic. So if someone passes away and leaves you a house, That’s great. But it doesn’t mean you own the house right away or just like right off the bat, right? You need to make sure that the title to the house catches up to you. [Edit: technically, I should clarify that it is automatic by law, in theory, see Indiana Code 29-1-7-23, but in practice you need the records to catch up.]  

And there are lots of different ways to do that. I spend lots of time every day trying to figure out these puzzles and try to think of the best way to make sure that title has caught up to, you know, what my clients think is going on.

Probate Scenarios: No Title Yet

So a really common scenario is husband and wife own a house, one spouse dies, years later the other spouse dies, and now you’ve got children who are inheriting, but we still, and we’re maybe working on the will of the second spouse, you know, administering that. And it’s like, wait a minute, the first spouse is still on the title. We got to get that cleaned up.  

Or two parties get divorced. Spouses own a house together, they get divorced, they go on their way, and then years later, one of the former spouses dies. And now we’re trying to do a probate and worrying about the house title. And we say, wait a minute, we’ve still got both names on the title, you know, got to fix that.  

What are some other common problems? I mean, and just even at the most basic level, you know, you get heirs who are trying to sell a house, you know, an inherited house and they’re trying to sell it, but they haven’t done a probate yet, or they haven’t done any sort of title work.  

And then the closing is hung up, right? Because the buyer and the seller, the realtors, the closing people, the title company all say, wait a minute, wait, you can’t sell a house you don’t own. So then we got to fix that.  

Get Attorney Help With Your Title and Probate Problems

So I guess the moral of the story is you’re going to have problems if you’re trying to do you know, if you’re relying on what you think the house ownership looks like without actually having, you know, caught up, you’re going to run into problems, right? The house sale won’t close or the mortgage company won’t deal with you and it’ll go into foreclosure, you know, or someone will come out of the woodwork with a claim against this house, you know, and they shouldn’t.  

The answer to the click-baity title, like, are you sure you own the house is: you gotta look at the property records. You gotta figure out who actually owns it. And if necessary, you gotta do the legal work to catch everything up.  

And sometimes that’s a full probate. Sometimes that’s a devolution affidavit or title passage affidavit. Sometimes that’s like other deed work, you know?  

Just recently, I had to go look up an old, you know, like 1991, like really old divorce decree and figure out, you know, what happened all the way back then. So something to consider, you’re going to have hangups if you don’t clean it up beforehand.  

We can do it in an emergency, but the sooner you do it, the better. And Like I said, there’s a problem-solving aspect to it, which I love to work with. So make sure you own your house before it causes problems.  

If you don’t own your house, especially if it’s an inherited house, come talk to a probate attorney like me. We’ll get you fixed up. That’s been all for today, just kind of an overview of title problems and how they relate to probate. I hope you’ve enjoyed it. Call me or look around the site for more information. Thanks. Bye.