Ask the TITLEMAN™ - Small Estate Affidavit; Military Power of Attorney
by John T. Lotardo aka TITLEMAN™-Sr VP/General Counsel, Stewart Title & Trust of Phoenix
Q. I read some of your postings and thought you might be able to answer a question I have. My husband passed away 3 weeks ago. We have 2 houses. The house I intend to keep was titled on a Warranty Deed with our names but there is no reference to any rights of survivorship, Tenants in Common, etc. anywhere on the document. I took a copy of it to the Probate Court office and the Clerk gave me an affidavit of small estate to be sent in after 45 days. The Recorder’s Office had the copy on the computer and the property listed in our names. I am still worried about this situation since the mortgage is written as Husband and Wife, my husband had 2 daughters (not by me) and several credit card bills.
A. I think the clerk at the courthouse must have been trying to help but did not know the whole story. Requirements for title insurance typically require a documents like the one they gave you and probably is referring to the small estate affidavit that is sometimes used in many places across the country when the person who died owned property of limited value but was not titled with a right of survivorship clause. This clause, when properly affirmed in the deed, allows property of someone who dies to transfer to the remaining titleholder. The clerk must have understood this when looking at your documents but they apparently did not know about your husband’s two daughters who may be claiming an interest in the property. This is an important fact. For example, in Arizona, children from a prior marriage can make a claim on part of the property. It sounds like you may have to address this issue of your stepdaughters’ interest. As for the mortgage, the mortgage company generally will not remove a deceased party’s name from a loan at the time of death. As for the credit cards, those should not affect the property directly unless perhaps they have recorded judgments, that is. But they may cause further grief for you if you do not deal with them in some fashion by proving that they are not your debts.
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Q. I have a quick question for you about a Military Power of Attorney that is going to be used to sell property. In the preamble of the document it states that Federal Law exempts the Power of Attorney from any State Laws. Now I know that it’s the government and they can pretty much do whatever they want, but are there any special guidelines that I need to be aware of on this? It’s signed and notarized but I’m not sure if that’s all that is required. Please let me know, I appreciate your help.
A. Each state has their particular nuances when it comes to documents used in their state and that includes a power of attorney. They have tried to create uniformity but differences still exists. With that said, the kind of Powers of Attorney you refer to generally overrule the law of the states. The Federal Government has put these kinds of documents in place to help those woman and men in uniform handle transactions here in the United States when they are far from home. For title insurance purposes, it is sometimes required that you get an affidavit from the attorney in fact to record. This affidavit is affirming to the title company and others that the power has not been revoked and the agent is unaware of the death of the party who gave the power.
The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Copyright John T. Lotardo. All rights reserved. John Lotardo (aka the TITLEMAN™) is Senior Vice-President and General Counsel for Stewart Title & Trust of Phoenix, Inc., and State Underwriting Counsel for Stewart Title Guaranty Company. He is a member of the National Advisory Councils for GoGetEscrow.com, GoGetLoan.com, GoGetNotary.com and GoGetRealEstate.com. The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. For more about John, visit: www.GoGetEscrow.com/Get/Titleman or www.AskTheTitleman.com.