What if I might not survive until closing?

Real Estate Broker/Owner with Lane Realty Eatonton, GA Lake Sinclair, Milledgeville, 706-485-9668 GREC# 169695

This is a sad and very sensitive topic and one I have had happen in my career more times than I care to count.  In fact, currently we are waiting on probate to be ready to close the property of a married couple who didn't have rights of survivorship in their title and owned property together and she recently passed away.  

So how can this lead to "trouble" on a contract or deal?  If the title isn't clear with all owners being able to sign, you can't close.  I always check on a potential listing and ask if all parties on title are available to sign the listing agreement. If not, you have to investigate the whys and resolve that the deed was written so anyone on title who can't sign currently there is a solution for.  There are power of attorney situations, there are death certificates, there is probates.... various situations call for various solutions when someone on the previous deed isn't able to sign a listing agreement, a contract or a need deed. And property is transferred by a new deed in the state of Georgia. 

So recently when I had a couple  signing an offer she actually asked me... what happens if I don't live to closing.  She was in hospice care, had a terminal illness and was trying to "get affairs in order" by not leaving her loved ones with rental properties to manage or sell.  They had all been hers alone before her last marriage and were all in just HER name.  So my advice was to discuss it with an attorney.

The attorney gave her a number of options, she decided on quit claim deed to both herself and her husband with rights of survivorship.  That way if she did pass prior to closing once it was pending the husband would only need a copy of the death certificate to close. 

I've also had a terminally ill seller quit claim the home to her son alone.  Now many might be saying "no, then he pays more capital gains tax", but this was back in 2010 and the house was worth less than had been paid for it at the time it was to be sold, so there were no gains to pay taxes on and again, I didn't make the suggestion of what to do, I sent them the contact information of a trusted attorney and they discussed the situation and made the best choice for them.

Now when it doesn't happen.... 

Once upon a time, Mr. Seller and Mrs. Seller had moved to another state, will was done in another state.  Probate had to be done in another state.  Probate took a LONG time in other state and our buyer had to wait patiently for MONTHS for that to happen because they had not heeded our advice to seek out an attorney and get anything done in time.  By the time the documents were prepared Mr. Seller was no longer able to sign anything. The widow was fortunate that the buyer had the patience that he did. Probate was vastly different in the other state and required waiting for a court date.

And death doesn't always come with an extended illness where there is time to make these changes and decisions.  Any person who owns property with another should discuss it with a an attorney to make sure it's deeded in the way that is more beneficial to survivors and what they want it to be.  It's fairly easy and inexpensive to change the deed.   If this is something you want to look into call me and I'll give you a list of attorneys happy to discuss and guide you. 706-485-9668

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Tammy Lankford, Broker/Owner


Broker License # 169695  Lane Realty License # H-11420

Real Estate Instructor License # 355089

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Comments (9)

Michael Jacobs
Pasadena, CA
Pasadena And Southern California 818.516.4393

Hello Tammy - the existence of time is important in real estate.  And sometimes it makes its presence known to a greater degree.  

Mar 17, 2023 11:33 AM
Marte Cliff
Marte Cliff Copywriting - Priest River, ID
Your real estate writer

It's good to know the rules in your own state - since they all seem to have their own!

Mar 17, 2023 03:54 PM
Patricia Feager, MBA, CRS, GRI,MRP
Selling Homes Changing Lives

Tammy Lankford, - Although paindful to write or to think about, if you tweak this post a bit, it would be perfect for the March to a Solution|ActiveRain March 2023 Challenge.

I feel confident Kathleen Daniels, Probate & Trust Specialist would agree that even though a topic like this may make people uncomfortable, it is a necessary topic that must be discussed when owning property, rentals, or being a Property Management Company. 

On the day my spouse and I were told by his doctor that he had 24-hour or less to live, the first advice he gave us was go to an Attorney's Office and get a Will and your affairs in order. Tammy, I was horrified and thought that doctor was callus and rude. But then, we did that before I drove him home to provide 24-hour care before he passed on. I was angry, but the attorney explained what the consequences would be for me and my children if he had another wife or a fraudster showed up to make a claim. We owned property in both our names and vehicles in his name only. It wasn't even a thought that cossed my mind! But the attorney explained, during the course of marriage many spouses find out the hard way things that happen  oftehn, when you own property, and don't have a will in place or your affairs in order. We did not live in TX and learned, State Laws were put in place for reasons people don't even know when buying property or getting married. No pun intended, but affairs do happen to unsuspecting spouses.   

It made me wonder about who did I marry? But both he and the attorney were really looking out for our best interest, and even though he died shortly thereafter, it gave me peace of mind knowing  getting his and my affairs in order were for both of us and the children instead of wondering what if?

Mar 17, 2023 06:13 PM
Tammy Lankford,

I cannot imagine doing a will at a time like that when it was the last thing you wanted to think about.  And yes, mine needs updating because I've had a LOT of life circumstances since it was done.

Mar 18, 2023 08:31 AM
Tammy Lankford,

Patricia Feager, MBA, CRS, GRI,MRP did a little tweaking and think it may qualify now.  Thanks for pointing that out to me.

Mar 18, 2023 08:38 AM
Kathy Streib
Cypress, TX
Home Stager/Redesign

Hi Tammy- I consulted on a home many years ago. The couple was selling their home to move to the dream home they'd wanted. The home went under contract but then the agent called to let me know that the husband had suddenly passed away while away on a business trip. So sad. 

Mar 17, 2023 06:56 PM
Tammy Lankford,

Kathy Streib another reason to live in your dream home now and not later and take that special vacation now and not after retirement.  Because you never know when it's your time to go.

Mar 18, 2023 08:32 AM
Kat Palmiotti
eXp Commercial, Referral Divison - Kalispell, MT
Helping your Montana dreams take root

This is a great point - deeds should be updated so that if one party or the other passes away, there won't be any questions about ownership.

Mar 18, 2023 05:39 AM
Patricia Feager, MBA, CRS, GRI,MRP
Selling Homes Changing Lives

Tammy Lankford, I did not mean to hijack your post. My passion for the message you wanted to convey got the best of me. I hope you can forgive me and will understand. 

Mar 18, 2023 06:49 AM
Tammy Lankford,

not at all upset Patricia Feager, MBA, CRS, GRI,MRP , your comment certainly could help others who find themselves in your situation or even prompt them to get the will now before they find themselves in your situation.  I believe your comments adds tot he message in a kind and generous sharing of what you faced on your worst day. And I hope that both the doctor and attorney were kind that day.

Mar 18, 2023 08:35 AM
Brian England
Ambrose Realty Management LLC - Gilbert, AZ
MBA, GRI, REALTOR® Real Estate in East Valley AZ

I don't think I have had any transactions where someone in the transaction passed away before closing.  I feel like there was one time, but I am not quite sure.

Mar 18, 2023 07:33 AM
Tammy Lankford,

I think I have had it happen 3 times in 31 years Brian England , which in the big picture isn't a lot, but it's certainly something to consider when you take a listing, that title is in order and they have a plan in place for if something happens to title holder.  It can be very unexpected.

Mar 18, 2023 08:37 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

My estate plan documents were updated in 2020 and they are being updated. The draft docs are in my inbox. Things change. Life changes. Who knows if this will be the last time they are revised?  My point is, it is wise to have them and we must keep them updated. Only time will tell. 

Mar 18, 2023 08:41 PM
Joan Cox
House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

Tammy, I can only imagine this would be a huge issue, and luckily after 26 years, have not experienced this, thankfully.

May 05, 2023 09:47 AM