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Old 10-26-2015, 04:12 PM
 
Location: Punta Gorda, FL
773 posts, read 487,977 times
Reputation: 970

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Larry and Betty meet and Betty moves in with Larry. They never marry. 20 years later Larry dies. About 5 years before he dies he creates a trust because he doesn't want his three kids to see it. His will defers to the trust as the governing document for how his estate will be distributed. He leaves the house and some money to Betty, the rest goes to the kids.

Larry Jr, named Trustee, contests the will and trust. He files suit but the judge rules in favor of Betty. The ruling is Betty now owns the house outright.

Why on earth that's not good enough for the title company, I have no idea. Betty should have kept the files. Her attorney should have kept the files. Junior's attorney should have kept the files. None of them did.

Betty's new attorney said it's law that an attorney has to keep case files for 7 years. It's only been 4.

My dad was a trial attorney who practiced in Illinois and Florida. We had a lot of discussions over the years about the law and how it works. I always found the law works reasonably. But this one baffles me. I think if my dad was alive today he would be incredulous over this one.
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Old 10-26-2015, 05:34 PM
Status: "October is the eighth month" (set 14 days ago)
 
Location: Just south of Denver since 1989
10,671 posts, read 28,468,654 times
Reputation: 6842
Wouldn't the clerk of the court have the record in the county where the property is?
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Old 10-26-2015, 06:47 PM
 
4,621 posts, read 7,184,388 times
Reputation: 4735
Quote:
Originally Posted by Tujuleez1 View Post
Larry and Betty meet and Betty moves in with Larry. They never marry. 20 years later Larry dies. About 5 years before he dies he creates a trust because he doesn't want his three kids to see it. His will defers to the trust as the governing document for how his estate will be distributed. He leaves the house and some money to Betty, the rest goes to the kids.

Larry Jr, named Trustee, contests the will and trust. He files suit but the judge rules in favor of Betty. The ruling is Betty now owns the house outright.

Why on earth that's not good enough for the title company, I have no idea. Betty should have kept the files. Her attorney should have kept the files. Junior's attorney should have kept the files. None of them did.

Betty's new attorney said it's law that an attorney has to keep case files for 7 years. It's only been 4.

My dad was a trial attorney who practiced in Illinois and Florida. We had a lot of discussions over the years about the law and how it works. I always found the law works reasonably. But this one baffles me. I think if my dad was alive today he would be incredulous over this one.
When Larry created the trust.........was the house included in the trust? Or did the house pass to Betty via the will? Was Junior also executor of the estate?

A simpler way for Larry to convey the property to Betty would have been to establish a life estate for himself naming Betty as "remainderman". Thus, upon his death, the house passes outside of the trust and will directly to her - no mess, no fuss.

Can you get access to the "chain of title"?
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Old 10-26-2015, 07:26 PM
 
Location: Punta Gorda, FL
773 posts, read 487,977 times
Reputation: 970
All great and logical questions and all have been asked and answered, outside of those that need Larry to answer.

The clerk does not have the trust on file. My understanding is a trust gives the creator of the trust certain rights, such as the right to privacy.

On the county appraiser website, they have a document filed called a Trustee's Distributive Deed which apparently satisfied the county as proof of transference of ownership. The estate attorney stamped it with "Return to the office of..." the estate attorney. The logical conclusion is the estate attorney has all the files. Today, four years after the case was closed, he says he does not have any files related to that case.

The chain of title, if you can't accept the court decision, stops at the trust. The trust detailed the transference of ownership. No one has found any other chain.

I have all the files the county has on file from that case. We have worked with the seller hand-in-hand to try to make this happen. Everything seems to boil down to the trust is the only document the title company will accept if they are to write the title insurance policy.

The seller has said many times, "Larry was an attorney and when he moved here he was shocked at the corruption and incompetence he found here." I'm not the type to accept opinion as fact but I am beginning to wonder now.

I really didn't want to go into the details like this but I am doing so in the hopes someone can explain how any of this is logical? If the local court made a ruling, why won't the title company accept that?
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Old 10-26-2015, 07:59 PM
 
4,621 posts, read 7,184,388 times
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If the Probate Court ruled that Betty was the legal owner of the property, then the notations would be found under the heading "document" on the new deed listing.

If there's nothing there, then the Probate Court needs to "catch up". The case records are in Probate Court.

When Larry established his trust did he title the property "Revocable (or Irrevocable) Trust of Larry Q Public?
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Old 10-26-2015, 11:47 PM
 
8,359 posts, read 7,348,842 times
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What you are seeing here, is the importance of having the documents that proves ownership. The tittle company is in the right not willing to insure the title without a very important document. The court may have ruled that a certain person is sole owner, but the documents needed to be recorded to prove that it is correct. That court decision can be thrown out on appeal if someone else comes up with something that was not included in that decision. When I was taking law classes at a major university, we were taught that a local court decision, can always be appealed and the lower court decision is often thrown out, and this appeal process can go as high as the State or Federal Supreme Court is the stakes are big enough before it is finally settled. We were taught that if a lower court makes a decision, to always take it to the appeals court as you have a 50-50 chance of winning.

A local court is not the final decision maker in this situation and proof to the title company, because it is still subject to appeal which may rule that it was not the correct decision when the trust document is discovered and presented. All the title company is doing, is making sure it is appeal proof. This is a wise decision, and the same thing would have been done by any legitimate title company.

Every attorney has said, it is going to take 6 months or so to get it cleared. The real test is, is the OP willing to just sit and wait for the title to get cleared so title insurance can be put on the property. If he is, he will probably buy the home if he agrees to give up to a 6 month period to clear the title. If not get his deposit back and move on.

This is not unusual, and clearing a title such as this is very common, with many reasons that it takes time to get a title cleared. I know I have been involved in some, where a paper or a signature had to be obtained. I was just involved in getting my daughters estate closed, which was substantial with no debt. It took 13 months to get it all done.
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Old 10-27-2015, 12:20 AM
 
8,768 posts, read 10,300,252 times
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Sounds to me like the real issue was the trust governed the distribution of property and not the will. The Judge probably was ruling on which (the will or trust) applied. Determining the trust applies, it means the terms of the trust governed the estate. I can see why a title company wants a copy of the trust because what is in that trust is what the court says is legal. They need the document to ensure it doesn't have some other condition on the property. So, yeah they need the actual copy of the trust so they can see exactly what is written about the property.
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Old 10-27-2015, 06:44 AM
 
Location: P.C.F
1,973 posts, read 1,514,051 times
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I think one thing you did wrong was the size of the earnest check... I have bought a few homes in my lifetime, even one in Mexico and I never put more that $1000 on the table..
Quote:
Originally Posted by Tujuleez1 View Post

When the 30 days are up, would you ask for your earnest money back ($10K) and tell the seller to call when the title defect is cured and keep looking, or would you extend the cure period another 30 days?
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Old 10-27-2015, 08:04 AM
 
Location: Punta Gorda, FL
773 posts, read 487,977 times
Reputation: 970
Quote:
Originally Posted by ocngypz View Post
If the Probate Court ruled that Betty was the legal owner of the property, then the notations would be found under the heading "document" on the new deed listing.

If there's nothing there, then the Probate Court needs to "catch up". The case records are in Probate Court.
We went to the courthouse with the Seller and viewed every page of every document. Any document that in any way supported ownership of the property, we printed. Nowhere in any of those documents did we see the trust.

There was one document that descended the property into the trust and under the control of the Trustee. It stated the Trustee would then disburse the property according to the trust. To me, it was very clear that however the estate was to be distributed was determined solely by the trust.

I asked our friend, the probate judge, if there was any way the judge in this case would have not seen the trust. She said she would have needed to see it to rule in the same way the judges in this case ruled. She also said she would have kept a copy of the trust, even if under lock and key, for the records.

Quote:
Originally Posted by ocngypz View Post
When Larry established his trust did he title the property "Revocable (or Irrevocable) Trust of Larry Q Public?
I have seen nothing, yet, that allows me to answer yes or no to your question but I think I remember mention of Revocable somewhere.

What I do know is the son (Trustee) signed a Satisfaction And Release Of Claim "of the estate and all further liability with respect thereto." He was then released as trustee for the estate.
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Old 10-27-2015, 08:35 AM
 
Location: Punta Gorda, FL
773 posts, read 487,977 times
Reputation: 970
Quote:
Originally Posted by oldtrader View Post
Every attorney has said, it is going to take 6 months or so to get it cleared. The real test is, is the OP willing to just sit and wait for the title to get cleared so title insurance can be put on the property. If he is, he will probably buy the home if he agrees to give up to a 6 month period to clear the title. If not get his deposit back and move on.
The attorney who the seller hired for the probate case initially told her 3-5 months. The seller wasn't happy with something in the past and went to another attorney who said 6 months. We are in a vacation rental and only have until the end of Dec. before we have to find someplace to stay. We've already moved once. If this actually takes 6 months, we'll be long gone.

The only way I see us staying in the game is if we see something that tells us it will be resolved soon. The daughter who spoke to the title attorney said she would look for the trust. For all I know she already found it or maybe she was just leading the attorney on. I don't know. But it is possible that the trust can surface without a long court case. Though, I'm not holding my breath.

What baffles me the most is two local attorneys who should have all the files from that case say they don't. It hasn't even been 4 years and somehow they both either lost or destroyed the files. My dad is rolling over in his grave.
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