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Death and Real Estate

Posted by: Chesley Payne
June 07, 2009
Topic: Consumer Information

The most common title issue I deal with are those issues concerning a property that has been in the same family for more than one generation. The following hypothetical sets out a common fact pattern we deal with:
 
Father buys property; Father dies with no will; Father's wife predeceases him; Father's three children attempt to sell property twenty years later.
 
The issue with the above hypothetical is this: there is no conveyance of record from Father to his children. There is also no will appointing an executor who is able to sign a deed conveying the property to the devisees. What do we do? Provided Father has passed away twenty years before, we have to obtain heirship affidavts from two disinterested parties setting out Father's heirs that have personal knowledge of Father's affiars. This would be a tough task with the amount of time that has passed. Then, all heirs of the Father must sign a deed conveying their interest. What happens when one heir doesn't want to cooperate? In short, chaos.
 
How does one avoid this? Get a will. The costs involved with a will are outweighed by the amount one is able to save for the heirs after death. A will also allows one person to be named who has the power to carry out the deceased's wishes. So, instead of dealing with each and every heir, the executor can simply execute a deed and provide a clear chaiin of title for the purchaser. And while there are leagal form websites advertising cheap forms, you get what you pay for. Thereis no guarantee those forms are compliant wth Alabama law and many contain superfluous provisions and little guidence about what you are actually doing. My best advice is to, repeat after me, see an attorney of your choice.

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