I am married living in the state of Washington getting ready to close on a home I am purchasing in the state of Texas. I realize that the home will be considered community property and would like to the know steps to make that seperate property. We already have "seperate community property" in Washington state. Is there a way to do this at escrow in Texas? Husband is in agreement, but won't be present at closing. Will I need to add him to the title then quit claim it back to me? What kind of power of attorney do I need and what would be the actual process to do all of the above at Escrow/closing?
Country relating to Question: United States
State (if USA): Texas
Good morning,I'm sorry to hear of the confusion.If your husband agrees that the property that you are about to purchace will be your separate property, then typically, all he needs do is sign a document for the mortgage company granting his permission for the property to be titled in your name only. It is not necessary to first have the property titled in each of your names, and then have him Quit Claim the Deed to you. he may even remain liable on any mortgage if that is what the two of you agree to. But, he will have to sign a document for the lender agreeing to allow you to take the property as your separate property. Then you will simply direct the deed be prepared in your name alone, as the legal owner.Your husband can sign all the Escrow paperwork wherever he is, before a Notary, and merely sent them overnight back to the escrow company. A formal Power of Attorney is not necessary. If you want a Power of Attorney for the process you will need either a General Power of Attorney, or a Special Power of Attorney specifically granting you the right to act on your husband's behalf in the purchase of the property. Just be sure that the document itself contains the notice that your husband understands that you will be acting on his behalf in purchasing personal property for yourself and that he will have no right, title or interest in the property. if you fail to include that language, you might later find yourself defending an action to set aside the transaction under a claim that you did not have the authority to represent him in buying the property and then in taking the property for yourself---an argument that you violated your fiduciary obligation as an agent with the Power of Attorney. For this reason alone, it would be better for him to sign the necessary paperwork himself.You may reply back to me using the Continue the Conversation or Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me. Kindly take a moment to rate my service to you based on the understanding of the law I provided. Please understand that I have no control over the how the law impacts your particular situation, and I trust you agree that it would be unfair for me to be punished by a (negative rating) ----the first 2 stars/faces----for having been honest with you about the law.I wish you the best in 2012,Doug
Thank you for your fast reply. Just to confirm so I understand :) He is not on the financing of the new home, it's only myslef, so there is no problem there. So I contact the mortgage company that is underwriting the loan (its just waiting for an Appraisal) and ask them the steps or forms husband/myself need to sign to have the title granted only in my name. Then arrange wtih escrow for the deed to only be in my name and my husband's side of the paperwork to be mailed to Seattle first for him to sign and have notarized ahead of time and overnight back....I'm assuming he would just be signing acknowledgement of purchase, etc for escrow since he won't be tied to it? Then this home will never be considered his property. The reason I am asking is the seller and I have agreed to some terms of things they are fixing and they have asked me to sign a document in agreement, which I am, then last minute they asked me to sign as married and want my husband to sign too (as community property) and I'd like to ask them to remove that portion since he won't be on the deed....but if I can't accomplish that, I guess I have to have him sign it! Thank you so much.
Good morning,Thanks for the additional information.You asked: So I contact the mortgage company that is underwriting the loan (its just waiting for an appraisal) and ask them the steps or forms husband/myself need to sign to have the title granted only in my name. Yes, that is what you will want to do. The mortgage lender will have a document for him to sign---and that should finalize it.Right, by signing what amounts to his consent for you to buy the property in your name alone, he will not obligate himself on the mortgage.You may reply back to me again, using the Reply to Expert link, if you have additional questions.Would you please rate me highly now, based on my assistance to you in understanding the law.I wish you the best in 2012,Doug
I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
One last question and I will leave you alone :) You have been super helpful and have made my day!!! In this seperate agreement beween the seller and I (not attached to the P&S agreement, which I am fine with) the bullet their attorney added reads "Buyer represents that buyer is a marreid woman and acknowledges that Buyer's spouse has agreed to be bound by the terms and conditions of the addemdum and the cotract for all purposes relative to the community property laws of the state of texas" I need to respond with how that should be changed. Should I just ask that it read "Buyer is a married woman establishing seperate property relative to the community property laws of the state of texas" Or what would be some better wording? THANK YOU!!!! You have been a super huge help!
Good morning,The seller won't care what happens after the sale of the property---they just want to be sure that they can sue both you and your husband if you don't go through with the sale. Under WA community property law, and in TX alike, the debts of one spouse may be sued on against the other spouse. It appears that the seller merely wants to ensure that the sale actually goes through. After that---they have no legal interest in whether you pay the mortgage payment or not, or whose name goes on the deed---as they have already been paid.To deal with the concerns of the seller, it seems that what might be done is to have your husband co-sign the agreement to purchace the property----that will not bind him to be on the title to the property once the deal closes. However, as the agreement merely asks you for a representation that your husband agrees to you purchasing the property and agrees to be bound by your agreement to purchace from the seller (this is a separate and distinct agreement than is the mortgage itself, and this agreement you are asked to sign by the seller does not directly affect the mortgage contract)---I just don't see a problem with you acknowledging what they have stated---presuming that it is true and correct. You can acknowledge it AND add "Buyer is a married woman establishing separate property relative to the community property laws of the state of Texas," if you wish.You may reply back to me again, using the Reply to Expert link, if you have additional questions.I wish you the best in 2012,Doug41114.749868669
Thank you! That makes total sense and I am just going to sign as is...less trouble that way :) Thank you again! Your service has been excellent!
My pleasure. Have a great week! If you have any new questions in the future, please feel free to ask for me by name in the question and I should be able to assist you.Doug
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