Ask the TITLEMAN™ - Cancel Listing; No Will; Judgments

by John T. Lotardo aka TITLEMAN™
Sr. VP/General Counsel, Stewart Title & Trust of Phoenix, Inc.

Q. I have a real estate agent, who called us yesterday and asked us to let everyone know that she has a listing with a certain customer. The customer has asked her to cancel the listing but she won’t. She wants us to notify her if that customer comes in to open an escrow. What should I do?
A. If she has a legitimate listing, which entitles her to a commission, then you would want to have that addressed during the escrow. Did she provide you with a copy of the agreement to discern the legitimacy of her claim? She could have an irrevocable assignment of proceeds. Without better documentation, you may not be able to contact the agent directly, since she may not be a party to the transaction. Bring it up to the customer at the time they open escrow to have them resolve it before it gets further out of hand.

Q. I’m an attorney trying to help out the family of a woman with an incredibly small estate who died without a will. Her daughters completely ignored the fact that she had acreage in the desert in Arizona thinking it was worthless. Now, someone offered $35,000 for the property and they want to sell. But the property is still in the deceased name. (Her husband pre-deceased her.) How do we sell the property? What does title need to allow the deed to be signed by the heirs? What’s the easy solution?
A. From what you have told me, it appears that they will need to conduct probate proceedings for the mother’s estate in order to obtain title to the property. There are several versions of probate that can be used. The simplest form of probate requires merely an affidavit and a probate coversheet completed together with filing fees. More involved forms of probate require additional forms to be filed with the probate court as well as notifying potential creditors and heirs. Given that they say the total value the mother had in the property was little, it does seem that they can use the simplest form of probate. If it is not available after you go through the statutory requirements (see Arizona Revised Statutes), they still may be able to handle the estate through one of the other informal administrations. The personal representative of an estate, once receiving “Letters of Personal Representative” from the probate court, is the person who can deed the property to the children pursuant intestate succession or perhaps directly to the buyer for that matter.

Q. Last I checked, judgment liens in AZ did not attach to a home which qualified as the resident’s homestead. I have had the title companies insure against those liens on sale to third-party purchasers. Do you know off the top of your head if this is still the case?
A. Some don’t automatically insure over judgments solely based upon the homestead law, but we in the industry certainly consider doing it on a case-by-case basis. (i.e.- determine if it is a personal residence of the debtor, etc.) Sometimes an affidavit of homestead is required to be recorded. We try to be accommodating whenever possible.

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.