Many times we are approached by a realtor, an executor, an heirs or beneficiary of an estate who tell us that they have a problem with probate because there is a glitch in the title of the probate house, which if not fixed can prevent the sale of the probate house of the estate.
Types of problems with the title of the house in Probate Court
A wild deed or a broken chain of title can make a title insurer unwilling to insure clear title in probate. Buyers usually demand that title be clear before the complete the purchase of probate property, and sometimes, the problem is not discovered until the buyer and the seller are in escrow, or even after probate sale confirmation. This can make the sale fall apart.
An example of this type of problem may be that mom or dad attempted to transfer the house to a child or children before probate, and the transfer created a title problem. Sometimes, parents are unduly influenced by multiple children at different times of their lives, and transfer the house to multiple people at different times. Mom transferred the house to son, and several years transferred the house to daughter, which resulted in litigation in mom’s probate estate after she died.
A Quiet Title action or a Probate Code 850 action called a Petition to Determine Ownership of Property is what people file to clear the problem. Sometimes, a Quiet Title lawsuit starts in Civil Court but ends in Probate Court. If the problem stems from transfers in and out of a trust, there can be a Heggstad Petition under Probate Code 850, where an interested person, usually a trustee or beneficiary asks the Court to transfer the property back to the Trust so it can be administered property.
A Probate 850 lawsuit essentially answers the question of who owns the house and who is entitled to ownership of title to the trust house or probate house. When your title company says they cannot insure or complete the sale of the house in probate, you need a probate title lawyer to repair the title in Court.
A probate judge will examine the evidence, take the testimony of the parties and make a ruling on whether the title is now clear. Title companies will then accept the order of that Judge and issue title insurance based on that order. A Probate Title Attorney can fix many of the house problems in probate.
The process of clearing probate title can take some time, so as soon as someone has passed away, someone should quickly examine the chain of title to determine if there are probate problems that need resolution ahead of time before a probate property is listed for sale.
A Spousal Property Petition can sometimes fix certain types of probate title problems. Where there is a will and the estate is left to the spouse, the spouse may opt for a spousal property petition in lieu of probate. Where there are problems with this is where there are fraction or part interests of others involved, and creditor claims also play a part in determination of the best way to alleviate the probate sale of the house, or other properties.
What happens if a Petition for Determination of Title to a property is contested? Because emotions run high in probate, there are many times where probate litigation or trust litigation ensues as a result of lack of clarity of title of certain property. Because the timelines for trials are very long due to Covid now, the Los Angeles Superior Court is not setting trials until 2021. There are many ways to informally resolve issues of a) access to a probate house, and b) title to the house and c) disposition of the house after probate. These informal ways include an MSC, a mandatory settlement conference, a private judge option, or private mediation, all of which are good avenues for probate or trust Alternative Dispute Resolution in Los Angeles.
Call Mina Sirkin, Probate Title attorney at 818.340.4479 to discuss your estate house needs, or email us at [email protected].
