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Published on Saturday, Jan 05, 2008
Q: My elderly parents (Dad is 90, Mom is 86) had been living in Florida for the past 20 years, but because of bad health, I moved them to California. Do they need to change their wills or do the provisions still apply ''as is''? I have power of attorney but would like to leave things as they are, if possible. — Beverly
A: Wills should be updated periodically, even if you live in the same state. But because your parents have moved to California — where the laws may be quite different — I believe it is best that your parents contact a local attorney and sign new wills.
In my opinion, everyone over the age of majority should have at least four legal documents: a last will and testament, a durable power of attorney, a power of attorney for health, and a living will (also known as an advanced health-care directive). Some people also have a separate power of attorney for financial matters.
Different states have different procedural rules to make sure that a will is valid. For example, in some states three witnesses are required; in others, only two witnesses need to be present at the will signing. In some states, the witnesses and the personal representative must be residents of the state in which the will is signed; in other states, there are no such requirements.
Accordingly, I strongly suggest you arrange for your parents to meet with a California attorney who can update their legal documents consistent with your local laws.
I also want to point out that while I appreciate your concerns for your parents, it is ultimately their decision — in their sole discretion — as to what they will include in their will.
Q: There is no signed deed on my mother's home that she has called home for more than 47 years. We hired a lawyer and he hired a private detective to try to learn the facts. My parents bought the house back in the l960s. We have had absolute no luck resolving this matter. We have all of the papers when they bought the house, as well as the documents proving she paid off her mortgage.
However, we cannot find the deed. How can a signed deed fall through the cracks? My mother is almost 90 years old. — Jeffrey
A: Your situation is not uncommon. Until the advent of computers, many legal documents were often misfiled or lost. Now, many recorders of deeds have computerized all of the legal documents, making retrieval very simple — even from your home personal computer.
Many people believe that when they sell their house, they have to produce the original deed. That is absolutely untrue. As long as the land records in the jurisdiction where the house is located show that your mother owns the property, that is all you need.
When a person buys a house, the title to that property is searched. Since most buyers do not pay ''all cash'' but obtain mortgage loans, the lender will insist on getting title insurance coverage. And the settlement attorney (or escrow company) that conducts the settlement will have to assure the lender that title is good and that there are no objections to title (we lawyers call these ''clouds'').
And even if you pay all cash, you still want to be assured you are getting good title and will want to purchase title insurance. The title company will not issue such a policy unless it is satisfied that good and clear title is in the seller's name.
But if you really want to track down a copy of the original deed, the first thing you should do is obtain a comprehensive title report and go back as far as possible. You should hire a professional title examiner; don't do this yourself.
However, if the title report raises problems, there are other avenues to explore.
You said the house is free and clear and you have documents showing your mother paid off her mortgage. Try to get a copy of that old mortgage (called a deed of trust in some states). I cannot believe any legitimate lender would have made a loan to your parents unless it was satisfied your parents owned the house. If all else fails, your mother may have to go to court. She would file what is known as an action to quiet title. Your attorney will be able to give you guidance on this process.
And if for any reason someone else is claiming title to the property, she can also add a count to the lawsuit claiming adverse possession. In most states, if a person ''openly, notoriously and hostilely'' uses someone else's property for a period of time prescribed by state law, a judge will issue an order directing that title is now vested in the plaintiff. For example, in Maryland, the adverse possession time is 20 years, while in the District of Columbia it is only 15 years.
But the bottom line, you do not need a copy of the original deed in order for your mother to sell her house.
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. Questions for this column can be submitted to bennyt@inman.com.
Q: My elderly parents (Dad is 90, Mom is 86) had been living in Florida for the past 20 years, but because of bad health, I moved them to California. Do they need to change their wills or do the provisions still apply ''as is''? I have power of attorney but would like to leave things as they are, if possible. — Beverly
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