Home sales involving trustees (designated signer for a trust) and Powers-of-Attorney (POA) that are family members, usually grown children for their aging or deceased parents, have become much more common. I have represented sellers of 16 transactions over the last 10 years that utilized these methods of handling the real estate transfer, 5 this year alone. Is it becoming more popular or is my client base just aging? Some of both.
I now ask this question early in the sale process – who has ownership of the property and who is signing? These trustee/POA sales typically are used for two reasons: Property is being held or placed into trusts more often as an estate planning tool, with the trustee being themselves or an adult child; and older clients that find it easier, if not necessary, to rely on their children’s assistance to handle the many details and negotiations of a home sale due to mental or physical disabilities.
The creation of a trust is a legal process that an attorney would do with the owner to place the home into, along with other assets. At that time, or by amendment later, the dedicated persons are named who can sign on behalf of the trust to transfer ownership of the property. This is the document that the title company will need to review prior to closing to certify the right person is indeed signing for the trust. Many times, they will simply have the trustee complete a Certificate of Trust instead of handing over the original trust documents. A Power of Attorney, however, can be a single page form created by the title company (many prefer to have their own form completed) that is signed and notarized by the owner and the person they designate to sign on their behalf. If a prior POA is being used, the title company will insist virtually every time that the original be handed over to them to be recorded along with the deed transfer. Special care needs to be taken that the restrictions on these documents are followed with regard to living vs deceased, mentally alert vs incapacitated, and the ability to buy and sell real estate. I had a home that was almost tied up for months due to the capacity clause. I have found that it works best designating one trusted child versus multiple siblings that need to sign. This speeds up the process immensely for everyone.
Other issues that are commonly dealt with at this time are dealing with the personal property of the owners (the biggest), repairs and improvements to the home, staging, and timing. These are important and time consuming decisions that need to be dealt with, sometimes on a short schedule. It is much easier to navigate this process with a Realtor who has this type of sale experience.
Best Wishes to you in 2016!
Gary Hoeferkamp, Broker - Owner of Hoeferkamp Real Estate 