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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 34794
Experience:  16 years real estate, Realtor. Landlord 26 years
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This relates to Florida law...My mother in law and father in

Customer Question

This relates to Florida law...My mother in law and father in law have a single house in a trust and are co-trustees. Dad died 10 years ago so mom is the sole trustee, with a non family member as successor trustee. Mom took her the house out of the trust and put it in her and her sons name. Mom now has dementia and with all her family in Michigan we moved her here and have to sell her house. I, her daughter-in-law have durable power of attorney over everything including her real estate. We need to sell her house to pay her assisted living care. We have an offer on the house and the title agent says that the sucessor trustee will have to sign off that since dad is gone she now takes the place of dad and especially since mom is incapacitated. Her arguemnet is that mom could not take the house out of the trust since their was a sucessor trustee and that the sucessor trustee and not the power of attorney will have to sign off of the house. I am confused because I was under the impression mom could take it out of trust without the sucessor trustees agreement. Please help I might lose this sale and its been on the market 6 months already with just this offer.
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  Barrister replied 11 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

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Did mother in law deed the house out of the trust while she was still legally competent?

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How long ago did she do so?

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Whose name is ***** ***** deed in right now?

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What does the trust say about when the successor trustee gains power? upon the death, resignation, or incapacity of the original trustees?

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Or does it say the successor gains power when one trustee passes?

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thanks

Barrister

Customer: replied 11 months ago.
OK, problem is we can not find her trust anywhere, all we have is the document attached. She was competent and deeded the house in her's and her sons name. She did this in May 2015 and went into assisted living in July 2015, and I have a letter from the doctor in December 2015 stating she in mentally incompetent from her doctor. This is all the info I can give you. She was horrible at keeping paperwork.
Expert:  Barrister replied 11 months ago.

Ok, to be honest, that doesn't really help much because it doesn't say when the successor trustee gains power...

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But generally, unless the trust specifically states that there has to be 2 trustees, then a successor only takes over when the original trustees can't or won't serve any longer, meaning when both mother and father passed.

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But if mother signed a deed as trustee taking the property out of the trust and transferring it back to herself and her son, then it is no longer in the trust and the trust doesn't own it any longer.

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Further, even if the successor trustee did have authority if the trust required two trustees, unless the trust stated that it takes two trustees to act, then one of them could act without the other.

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So this boils down to timing here.. if mother was still legally competent as stated by her doctor when she deeded the property out of the trust, then nothing else would need to be done to convey clear title as long as son agreed to sell and you acted as her POA to sign on her behalf.

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With all that said, I disagree that the successor would have to sign anything if the property had already been transferred out of the trust because the trustee is only in charge of assets in the trust..

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thanks

Barrister

Customer: replied 11 months ago.
Ok, thank you. So there would be no issue as to the sucessor signing the real estate sale papers over the POA which is me, correct. I sign and her son signs. Would there be a problem as the title lady says, we can't prove that dad did not specify someone else to take his place as trustee, but the way I read the law, they are co-trustees and she can act without him since he passed. DO you think I will have to get a lawyer to hash this out of the title company keeps complaining about not being able to provide the trust papers to prove she had the legal right to take it out of the trust. ?
Expert:  Barrister replied 11 months ago.

So there would be no issue as to the sucessor signing the real estate sale papers over the POA which is me, correct. I sign and her son signs.

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Correct. If the deed is not in the trust's name, then it isn't under the control of the trustee..

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Would there be a problem as the title lady says, we can't prove that dad did not specify someone else to take his place as trustee, but the way I read the law, they are co-trustees and she can act without him since he passed.

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Would it be better to have a quitclaim deed signed by the successor over to mother and son??.....yes that would definitely close up any loopholes.. Is it absolutely necessary?.....I would opine no since you stated that the deed is legally in mother's and son's name. That means that they are the owners, not the trust.

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DO you think I will have to get a lawyer to hash this out of the title company keeps complaining about not being able to provide the trust papers to prove she had the legal right to take it out of the trust. ?

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I think that a picky title company might be nervous about issuing a title policy on the sale to a buyer, because there really is no way to know if the trust required 2 trustees to sign, if it was an irrevocable trust, who were the beneficiaries of the trust, etc. So losing the original trust is kind of a big deal here.. But on the other side if there is no one to object to the property being removed from the trust, then even if it was improper, no one is going to raise the issue..

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With all that said, if any buyer's lender refuses to make a loan based on the title company's report, then you will have to get a local real estate attorney to file a "Quiet title" action in the local court to have a judge declare that the transfer is valid and mother and son are the full legal owners of the property.

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thanks

Barrister

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