Stautz Law

Tag: Title

  • Do You Actually Own the House?

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    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. 

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  • Indiana Devolution Affidavits Explained

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    Good morning, folks. It’s Andy Stautz at Stautz Law. I’m back for another Indiana probate administration topic. And this one has been a long time coming. We are talking today about devolution affidavits.  

    What is a Devolution Affidavit?

    Devolution affidavits are a tool that you can use in certain circumstances to record a transfer of property from a decedent (Someone who died) to their intestate heirs (it’s an important qualification) without a formal probate administration.  

    This topic is kind of a minefield because there’s a lot of gray area in terms of when and how and whether it’s the right thing to do. So we’re going to talk about what a devolution affidavit is supposed to do first and then we’ll kind of talk about some limitations. And then we’ll kind of talk about how you decide. Whether it’s it’s a good idea.  

    Basic Rule: Title to Property Passes at Death

    So at its most basic, a devolution affidavit is just giving effect to a provision in the probate code that says. “When a person dies, their stuff goes to their heirs.” Like that’s the basic rule, right? But to understand what happens next, you need a bunch of legal concepts.  

    Exceptions to Title Passage at Death

    Basically. There are a bunch of exceptions to the general rule, so the general rule is when you die, your stuff goes to your heirs. Except. The personal representative, if there is one. You know, is in charge of administration. You know, except a will doesn’t take effect unless it’s been admitted to probate. You know, creditor claims … title passes, except it’s subject to credit or claims until the nine month absolute claims bar. And so forth.  

    How a Devolution Affidavit Works

    Umm. So a devolution affidavit is basically supposed to say. “Here’s how that title passed. And here’s why none of those exceptions are going to be a problem for us now.” So we talked a few weeks ago or a few days ago about small estate affidavits. If the total estate’s less than $100,000, you can use this one pager to get personal property.  

    OK. Well, what about real property? The devolution affidavit is basically the answer to transferring real property without probate. It’s not subject to that $100,000 small estate limit.  

    What is in a Devolution Affidavit?

    But it’s subject to some other. Conditions. OK, so those conditions are set out in I.C. 29-1-7-23. Just pulled up that code citation for you. And that’s where it says, OK you can. You can record an affidavit. Just like a deed that says. “This property was owned by the decedent. These are the heirs. . . that can be one person or many people. You know, here’s how it descends.”  

    And you record that. And it’s effective as a transfer. And then if after the time limit for opening a probate estate comes and goes. And the creditor period comes and goes. Then it’s like, OK, nothing can disrupt this now. So it’s final.  

    So anyone else who wants to buy the property or whatever can do it without worrying that a personal representative’s suddenly going to open an estate or a creditor is going to come forward with the claim.  

    Finality of Devolution Affidavits; Title

    Some of the gray areas are of course like what? How final is that really? Because unlike probate, where there’s a formal procedure and the court is at least a little bit involved in granting the petition. [With a devolution affidavit] you’re pretty much just relying on whoever makes the affidavit to say so about who gets the property and why.  

    And as we’ve discussed in the past. You know, there’s this escape hatch in the probate code that says you can probate a will to prove passage of title of property that’s still titled in the name of a decedent. In theory, the devolution affidavit should defeat that because once it becomes effective, the property is no longer titled in the name of the decedent.  

    But in practice some title companies are a little leery of this. Some Realtors don’t know how to work with it.  

    How to Decide if a Devolution Affidavit Will Work for You

    To sum it all up, you know, what you kind of need to know is, is there a will? Because if there’s a will the rules say you have to probate it, so no devolution affidavit for you. Is there potential family conflict? If so, probably no devolution affidavit for you, right? You don’t want to be part owners with a bunch of people who don’t get along. You know, are there other assets that would make a formal administration a better idea? You know, what are your plans in terms of sale? Does it, you know, if you’re just staying in the house, then maybe yeah, you do devolution affidavit– you don’t need to get along with your seller.  

    So there are a lot of considerations, but it’s kind of this backdoor method to pass real estate down if there’s no will. You know, all you’re trying to do is move the property and you know it gains finality once the time limits pass for everything else.  

    Conclusion: Seek Legal Advice

    I hope that was. Some consideration of what’s out there. A full discussion of how the title passes and when it’s perfected is…. I think requires a legal background. But. That’s kind of the overview. Hope it was helpful and if you’ve got questions about this. I do them all the time. I, you know, decide whether probate is appropriate, decide whether a devolution affidavit is appropriate and you know, and charge accordingly. 

    So. Give me a call if you’ve got questions. This was an overview I can give you specific advice if you are my client. Thanks and bye. 

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  • Fixing House Inheritances

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    Hi folks, it’s Andy Stautz at Stautz Law. I am back with another… I guess it’s an estate administration topic. This one’s kind of an oddball and it’s not going to be my most focused talk ever, but it comes up so much. And the question is: how do I get the house? How do I fix the house?  

    Scenarios: Houses Left in Old Title

    And the scenario that comes up over and over is, oh, my grandma, you know, owned the family farm and she died and so and so’s name is still on the title, but he’s gone. And you know my cousin’s living there.  

    All of these situations where there’s there’s some property (real estate always, you know we’re not talking about personal property here). There’s some real estate, there’s some house and it’s still titled in someone’s name who’s gone. And the question is OK. How do we how do we bring it up to date? What happens, you know?  

    A lot of times this happens when either there’s a mortgage or there are taxes, and something changes there. 

    In theory when someone dies the personal representative, if there’s an estate administration, or the beneficiary if there’s a transfer on death deed, maybe, needs to assume the mortgage and let the bank know that someone else is paying the mortgage. Same thing with taxes, right? Like in theory, you should get it passed down and make sure that the person who says they’re paying taxes, is the one actually paying taxes.  

    Obviously, that doesn’t always happen, right? So you’ve got people who are paying the mortgage in a dead person’s name or paying taxes in a dead person’s name. Which is not a huge deal as long as things are getting paid… Most people are usually willing to just kind of let it slide, but if there’s a change in circumstances, that’s when it comes up. Or someone stops paying the taxes and now there’s a foreclosure sale or a tax sale.  

    Solutions to Broken Inheritance

    So can can you fix it? Usually, yeah. Usually, yeah. It just kind of depends on different factors. 

    1. Probate a Will for Specific Asset

      For example, if there’s a will, that’s great. Usually the rule is you have to probate A will within three years of a death. Now sometimes these cases come to me a little way after. Fortunately, there’s an escape hatch in the Indiana Code that says, oh, by the way, though, you can probate a will specifically to clear title or pass titles of something that’s still titled in the decedent’s name… which is perfectly this situation, right? We’ve got a house. It’s still titled in someone’s name. They died five years ago. It’s like, OK, we’re past the three-year limit, but we can still introduce a will if there is one to say “here’s how it needs to go.”  

      [Edit: that code provision is IC 29-1-7-15.1(h)] 

      2. Survivorship Affidavits

      Sort of similar for survivorship affidavits. So if there’s a joint titling situation and you need to resolve who got the property by survivorship, you can file a survivorship affidavit. As far as I can tell, uh, you know, there’s not right in the statute a limitation on when you can do that.  

      And sometimes it happens years later, sometimes you need to do a survivorship affidavit to clear up a joint title situation. And then a probate.  

      You can kind of stack these methods.  

      3. Devolution Affidavits

      The other technique which probably deserves a whole talk of its own, is, uh, what’s called a devolution affidavit. And this is basically a deed that you can do without a probate administration. And it’s supposed to show the title to the real estate passed.  

      Problem is, if it passes by will there’s another clause in the probate code that says you can’t. You have to probate the will for it to be effective, [citation: IC 29-1-7-24] so arguably that means you need to do the probate of will for specific asset.  

      In intestacy, you don’t necessarily need to do that. You’re just still, you know, depending on your title company, some title companies take the position there’s still a cloud on the title because until there’s been an administration. The property is, you know, subject to possession of the of the personal representative. And again, that gets arguable, but it’s something to consider.  

      So that’s just a bunch of considerations. This is really a problem solving area, so if there’s a house and it’s titled in the wrong person’s name and you’re wondering who gets it or whether you can get it, it just depends on the facts and it depends on what intestacy rules say, what the will says, if there’s a will, you know, other heirs and it’s kind of… it’s problem solving. You know you use these different techniques to try to make sure it goes in the right place which can be really fun.  

      You just don’t know how it’s going to turn out until you get advice for your situation. So if you’re dealing with something like that, give me a call. Love working on these cases and I hope this talk has been helpful. It’s kind of a general overview of what’s possible. Thanks. Bye.

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