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Is it ok for the listing agent to add a 2nd Seller to the real estate contract a week before closing?

Eugene, OR |

An 80 year old man is selling us his house. His wife died and the house may be owned by her trust. We are being asked to sign an addendum adding his daughter as the 2nd seller of this home a week before closing. Up to this point, he has been the only Seller on the real estate contract. Will this have any ramifications for us as the future owners of this home?

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Attorney answers 4

Best Answer
Posted

I wouldn't want to answer this question without reviewing all the relevant documents including any trust that may be involved. See an attorney if you want to be sure that this is the correct thing to do. It may well be OK but it is impossible to say that without reviewing the transaction and talking to the people that are involved. It may also be that the daughter doesn't has to be listed as a seller, but just has to create some type of document consenting to the sale which gets recorded. I have done lot's of sales involving property previously owned by a deceased person and it really boils down to making sure that you record the proper documentation and affidavits that support that chain of title and the transfer for all parties with an ownership interest. For the transactions I do I request that the sale be done with a title company that has a house counsel that I can work with. Usually the in house attorney for the title company and I review and discuss what documents we need to close the transaction. http://www.portlandlegalservices.com

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John P Corrigan

John P Corrigan

Posted

By the way....I did agree with you before even answering the question.

Joanne Reisman

Joanne Reisman

Posted

I do understand what you are saying and I don't necessarily disagree with the points you are making, my concern is that it is getting too technical for the non-lawyer asker that posed the original question and that it also doesn't point them to talking to an Oregon Lawyer and understanding what may be done pursuant to Oregon Law. What may be simple or easy for you and me to figure out is probably neither simple or easy for a non-lawyer. So we just need to exercise and abundance of caution in this forum. But any time you want to talk lawyer to lawyer, I am sure we would have a very enjoyable time joining forces to solve whatever problem we are addressing and I would look forward to it.

Posted

If you want to close don't you want all the sellers to join in the conveyance to ensure that you have full title to the real estate without exception?

Joanne Reisman

Joanne Reisman

Posted

Real estate transactions in the West tend to be a bit different then the East. We utilize title companies and title insurance and we can often perfect the chain of title by recording various documents that satisfy the title company, like an affidavit of heirship. If there was a trust involved one needs to see if there was a deed recorded that conveyed title to the trust while the decedent was alive and go from there. Something can probably be worked out but this person needs to bring all the relevant documents to an attorney to figure it out.

Posted

I agree with both previous answers and would caution you to check the title on the property at once. If the daughter's trust owns the property your deal may have be completely rewritten with the trustee.
Good Luck

Please be sure to indicate the best answer. If this answer was helpful, please mark as helpful below. Only. If and until you and I sign an Agreement for Legal Services, I am not your attorney. These answers are provided for informational and/or novelty purposes

Posted

Is a simple matter normally handled by your attorney who would have ordered an abstract of title early in the process. This would tell you exactly who is on the currently registered deed -- who are the lawful sellers. BUT -- if the deed has a husband (living) and wife (deceased) listed as joint owners (JOWROS) then by operation of law the surviving spouse is the sole legal owner (seller) of the home. CONVERSELY -- if it happened that the deed was not joint ownership but, instead 50/50 tenants in common between husband and wife (deceased) then you got some work to do. An estate deed will be required to properly convey the 50% that was not owned by husband. Given your comments about a daughter and wife trust I think this is what you may have here and, therefore, if daughter is a beneficiary of deceased Mom's 50% interest then your attorney and title company will need to work through the proper affidavits and deeds to be executed by the executor for deceased mother (which may be the daughter as well).

My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.

Joanne Reisman

Joanne Reisman

Posted

Actually this may not be the case. The property could have been conveyed entirely or partly into a trust. The recording may only be a deed that says property is conveyed to the such and such trust. You would still need to locate the trust deed to find out who takes over when the settlor and beneficiary of the trust, the wife, dies. This will not show up in the title record. It is also not automatic that a property owned by spouses automatically transfers to the surviving spouse. There can be situations in Oregon where the spouses retain an interest jointly that doesn't pass by survivorship. So yes, they do need the help of a lawyer to figure this out but no, it is not necessasrily simple. (In Oregon a deed which states John Doe and Mary Doe husband and wife, or John Doe and Mary Doe tenants by the entirety is going to create joint tenants with the right of survivorship. But there is a trust involved somehow per the facts stated so I doubt we have only a deed with one of these designations to deal with.)

Joanne Reisman

Joanne Reisman

Posted

Correction: You would still need to locate the trust document to find out who takes over when the settlor and beneficiary of the trust, the wife, dies.

John P Corrigan

John P Corrigan

Posted

You have misinterpreted me so let me clarify -- I meant "simple" as in terms of finding out who is actually listed on the deed at present which is a simple task -- not that the issue presented by asker is simple. If the property was conveyed into trust (or partially) then a new deed would have to have been recorded to effect the transfer making a trust w/o such conveyance not effective for title purposes. We would know this from looking at the deed. The rest all depends on who is living and who is a beneficiary under deceased mother's estate if there was no trust deed ever prepared...which means probate process to get executor of deceased Mom to convey whatever interest the estate had as well as the daughter if she was a beneficiary (but not yet on a new deed as should have been done).

Joanne Reisman

Joanne Reisman

Posted

This forum is to address questions of non-lawyers. The answers need to be simple and in cases like this where the problem is complicated it is probably not a good idea to do too much analysis. You risk a non-lawyer acting on your words. Also the asker may not understand that you are speaking, I assume, from your experience as a New York Lawyer. While there can be general similarities, the laws do vary from state to state so the asker really needs to discuss this with an Oregon Lawyer as I am assuming the property is here in Oregon. I also want to stress that property of a decedent in Oregon can be transferred without a probate. So we can't assume that there will be a probate process or a duly appointed executor. In fact, you don't normally involve probate if property was properly transferred into a trust. So rather then make this more confusing to the asker, the answer should simply be, see and Oregon attorney.

John P Corrigan

John P Corrigan

Posted

I see no need to be instructed on how I want to answer a question Ms. Reisman, especially on a wide open forum, and I think your hostility is not only offensive but misplaced. Have a pleasant evening.

Joanne Reisman

Joanne Reisman

Posted

Nope - no hostility here. A lay person is not going to know what "JOWROS" stands for, for example. You stated "An estate deed will be required to properly convey the 50% that was not owned by husband." This is not necessarily true in Oregon. You can convey property without a deed from an executor. I do it all the time. You discuss "if daughter is a beneficiary of deceased Mom's 50% interest" which may be the case. But it is not the only reason the daughter may be necessary. The daughter may now be the trustee of the trust that now owns mother's interest in the property and the trust may have other designated beneficiaries - so the trustee can act as the seller but may not necessarily be the beneficiary who receives the proceeds. I reiterate - this is a situation where the asker needs to take the documents like any trust, any will, the earnest money agreement, the preliminary title report etc, to an attorney and figure out how to best go about getting a clear title.

John P Corrigan

John P Corrigan

Posted

Let's move on...

Joanne Reisman

Joanne Reisman

Posted

I'll buy the first round. :)

John P Corrigan

John P Corrigan

Posted

You got it!

Asker

Posted

Shouldn't I just be able to ask the Title company if this is all ok? Doesn't title insurance protect me?

Asker

Posted

Thank you very much for your responses!

Joanne Reisman

Joanne Reisman

Posted

To the asker: I find that the front office people in title companies are not legally trained and don't understand the intricacies of what to do when perfecting title where a prior owner died. Some title companies won't even issue title in these circumstances unless there has been a probate which is not always necessary and can be very expensive. I work with the Attorney of one of the title companies that knows how to do this and we figure out what documents need to be filed. So no, talking to the title company is not a substitute for having and attorney work on this with the title company. The seller may actually be the one that needs to hire an attorney to work with the title company. Usually when I work on these cases I am hired by the seller. But you as the buyer can certainly talk to an attorney. After all you don't want to have problems down the road.

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