Seller Beware, you can’t sell this home. It may not be Yours
Seattle Real Estate | Gerhard Ade
So, you want to sell this home?
So, you want to sell this home? One of the keys to the exchange of real properties is how the deed is conveyed by the seller to the buyer. While the following examples deal with specific circumstances, understanding the broader principle of real property transfer will be beneficial to anyone.
Selling your Parents’ Home?
Taking care of an elderly parent often includes the sale of their home. Sometimes, that sale takes place after the parents have passed away. In both scenarios title and deed issues take center stage.
If the parent or parents are still alive and hold title to the property, the home can only be sold by a child or other relative who has power of attorney to do so. In the case of a living parent, there are two powers of attorney that make this possible:
- Specific Power of Attorney (for the property in question)
- Durable Power of Attorney (but it must include language regarding sale of real property)
To be valid, both of these Powers of Attorney must be recorded with the respective county.
In both cases, the listing agreement will show the name of the living parent(s) name(s) as the owner(s) and the signature of the authorized individual followed by “A.I.F.” which means “Attorney In Fact.” All offers and addenda follow this model of identifying the seller as the person who holds title to the property and the signatures/initials of the person acting as the A.I.F.
To have legal standing, getting a legal description from the title company is essential for all listings and transactions. In these scenarios, it is doubly so.
The Sale of an Estate Held in Probate
In the case of a sale by the surviving relative, such as a child, the first thing that must be established is that the person selling the home is permitted to sell the property. For example, the preliminary title report may include the phrase “… pending probate proceedings in [County] court…” followed by “…the personal representative(s) has/have been granted non-intervention powers to sell, convey or mortgage the property.”
The listing agreement will show the deceased person’s name or say the “estate of…” as the owner of the property and the signatures and initials on the listing and subsequent transaction documents will be the name(s) of the representative(s).
In Washington state, title to real property is conveyed with a deed. There are a variety of deeds. The buyer of a property sold by an estate will NOT receive a Warranty Deed which is one of several Washington State statutory forms, the others being a Bargain and Sale Deed and Quitclaim Deed.
Instead, the buyer will receive a “Fiduciary Deed” which does not provide any warranties by statute. The deed itself, usually drafted by an attorney, will contain the intended warranty language.
Finally, a property sold by an estate is exempt from providing the buyer with Form 17 – the six-page Seller Disclosure Statement. The logic here is that the owner is no longer alive and the sole representative has no knowledge about the property.
Obviously, none of the above constitutes legal advice. Information on title and deed is available online, from title companies and real estate attorneys. Still, if you have questions regarding title and deeds, contact me and I will gladly point you in the right direction.
Note: For Warranty Deed information in Washington see RCW 64.04.030, for Bargain and Sale Deed see RCW 64.04.040 and for Quitclaim Deed see RCW 64.04.050.
First published by Gerhard as his January 2020 View from the Street Newsletter.