First Team Real Estate
As a real estate agent with 25 years of experience, I've encountered many misconceptions about selling homes using legal documents like Wills, Trusts, and Powers of Attorney. Here are five real-life examples to clarify the legal rights involved:
Story 1: A Will but no Trust
I got a call from five sisters and brothers who needed to sell their family home after their parents passed away. Mom and Dad were on the house title and there was no Trust. The children thought that there would be no problem because their parents had left a Will indicating that the children were to sell the home and divide the money. When I met with them I had to tell them that the home needed to be in a Trust to accomplish this. A Will alone does not allow for the transfer of title and without a Trust, the home would have to go to Probate. I think a lot of people don't understand this, which is why I tell you this story.
I referred them to a trust attorney who filed a probate for them. A probate can take 4 to 8 months.
Since this was an uncontested probate (all the siblings were in complete agreement) they got it through the court in less than 3 months. I was able to put the house on the market subject to the completion of probate. We got multiple offers and closed escrow three months after the probate.
Story 2: Act as Successor Trustee when Owner is Still Alive but has Dementia
I got a call from a gentleman who was trying to help his elderly aunt sell her home so she could use the money to move into a nice assisted living residence. He was the successor trustee of her trust but didn’t think he had the authority to be the signer until his aunt passed away. After reviewing the Trust we saw that he could take over her affairs with two doctor’s notes stating the mental incapacity of his aunt. I worked with the nephew closely, got his aunt’s house sold and we helped her move into a lovely assisted living home nearby.
Story 3: Using a Power of Attorney with a Trust
I was asked to sell a home that was owned in a trust but the owners were going out of the country for several months and didn't want to delay the sale of their home. They wanted to give their daughter Power of Attorney to sign all the documents to sell the home. You typically cannot use a Power of Attorney with a trust. They did not want to take their house out of the trust so they had their attorney amend the trust to allow for a Power of Attorney to be used. I was able to sell their home with the daughter signed all the documents.
Story 4: Home not 100% Owned in a Trust
I got a call from a lady who was the executor of her deceased mother’s trust. Everything would have been in order for her to sell the unit, however after the title company researched the home it was discovered that, for some reason only 50% of the mother’s condo was in the trust. The other 50% was just in the mom’s name as an individual. Even with half the property owned in a trust the condo still had to go to probate before I could help her. I finally did sell it after the probate.
Story 5: There was a Trust but the house was never transferred to the Trust
I got a listing from a son who was selling his deceased father's home. He gave me a copy of the trust showing that he was the sole successor trustee, however I told him that the title to the was not in the Trust. It was just in his father’s name. He called his father’s attorney who created the trust and found out that he had accidentally never recorded the deed transferring the home to the trust. It would have had to go to probate except the attorney found the deed that was signed and notarized years ago by the dad and immediately got it recorded.
The son could then sell the home.
Key Takeaways:
· Trusts facilitate smoother property transfer than Wills.
· Power of Attorney loses validity upon death and may not apply within Trusts.
· Consult an attorney to create and finalize Trust documents properly.
· Probate can be lengthy; planning with Trusts helps avoid it.
By understanding these points, you can make informed decisions when selling a home and ensure a smooth process for yourself and your loved ones.