Ask the TITLEMAN™ - Small Estate Affidavit; Inaccurate Addresses
by John T. Lotardo aka TITLEMAN™-Sr VP/General Counsel, Stewart Title & Trust of Phoenix
Followup:
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 the Warranty Deed (this is Indiana) with our names listed as last name, husband’s first name ‘and’ my first name. There is no reference to rights of survivorship, T/E, Tenants in common etc. anywhere on the document. I took a copy of it to the probate court office and the clerks said they weren’t interested in the house because it was not titled in his name only. They 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 entire property can be found listed under each of our names with reference to the spouse. Of course, I am still worried about this situation. The mortgage is written as Husband and Wife. My husband had 2 daughters several credit card bills in his name only. What is your opinion on this matter?
A. I am unsure about the process in Indiana. It sounds like the probate court was trying to steer you into doing a small estate affidavit but I am not sure that you qualify for that. Many jurisdictions have a limit on how many assets your husband could have to be able to use the affidavit. You have two homes so you may already be above that limit. If it could work, a small estate affidavit does work well for many, especially those who cannot afford to conduct a full-blown probate through the courts. But you bring up two important things, his two daughters. They may be making a claim to part of his estate let alone the house(s). I would suggest you contact some local counsel to get some guidance on how to deal with them as well as the property. If you are concerned about the expenses involved, keep in mind you want this to work out and not have it be dragged out for years. Your local state bar association should have some low-cost referrals for you.
(A follow-up email from Questioner.) Thank you for your reply. Since writing, I have contacted a lawyer concerning the issue. I was also told that I didn’t need to do anything with either title until I sold either house. I found that I was worried for no reason, and that the small estate affidavit was all I would need to file. Indiana’s limit is $25,000.
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Q. I am encountering “issues” with the addresses on properties I am handling the refinancing and need your assistance in determining who is “responsible” for providing me with an ‘accurate’ address. My preliminary title report will come in without, says a ‘NW’ on the end of the street address. I get a mismatch more often than not lately stating the borrower is refinancing a primary residence however the borrower’s address varies from their current address. How do I know which one is the one we should be using- me, my closing attorney and the Lender- the USPS site will have the NW - the tax assessor will not have it- the security deed will, warranty deed won’t. It may seem trivial but it is costing me so much time changing stuff from one to the other and it is ridiculous my title agent insists he is not the one to provide me with the true and correct address- he says if the legal matches that’s all that matters and clearly that is not the case any longer for loan’s to be underwritten and approved correctly. If there were documents recorded with the incorrect legal -can I now ask that this be corrected with a scriveners affidavit or something since I think this is actually not my job but the title company?
A. It sounds like you are indeed frustrated. Each jurisdiction is different but I would say you are looking for at least some help from your title agent out figure this one out. That makes sense. Whether or not they can get you the answer or not is another story. But at least they should try. As for requesting a scrivener’s affidavit be done to correct the earlier error in legal description, I would have to defer to the title company who is ultimately title insuring the transaction. Correcting mistakes such as an incorrect legal description can be done, but I see some times that they are not amended if, taken as a whole, the underwriter does not see it as a defect warranting action. If it were something unrelated to the transaction at hand, for example, a prior loan having the wrong legal description, it would be for the prior company to assist in correcting it.
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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.