Deceased owner still on title

[CHAOS]

Are there any issues with a deceased person still being on title? Situation is Power of Attorney is selling the property over the living parent. In preparing sale documents they discovered deceased person is still on title. The title also has a mortgage registered against it in both names.
The vendor has attached a stat dec stating when the other person on the title died.
Is this the correct way for the above to be addressed? Should this have been properly rectified before having an auction?
In regards to registered mortgage - it is over 40 years old. Is this a case of the owners paid out the home and never asked the bank for the title?
As a prospective purchaser should I have concerns?

 

[marg4000]

It may delay settlement while the vendor sorts out the title issues.
Marg

 

[Terry_w]

Are there any issues with a deceased person still being on title? Situation is Power of Attorney is selling the property over the living parent. In preparing sale documents they discovered deceased person is still on title. The title also has a mortgage registered against it in both names.
The vendor has attached a stat dec stating when the other person on the title died.
Is this the correct way for the above to be addressed? Should this have been properly rectified before having an auction?
In regards to registered mortgage - it is over 40 years old. Is this a case of the owners paid out the home and never asked the bank for the title?
As a prospective purchaser should I have concerns?

Yes you should have concerns and seek legal advice. Who is going to sign the transfer?

Sounds like probate was never applied for or the exector neglected to transfer title.

When was the death?

And I bet they are using a covneyancer?

 

[Paul@PFI]

Are there any issues with a deceased person still being on title? Situation is Power of Attorney is selling the property over the living parent. In preparing sale documents they discovered deceased person is still on title. The title also has a mortgage registered against it in both names.
The vendor has attached a stat dec stating when the other person on the title died.
Is this the correct way for the above to be addressed? Should this have been properly rectified before having an auction?
In regards to registered mortgage - it is over 40 years old. Is this a case of the owners paid out the home and never asked the bank for the title?
As a prospective purchaser should I have concerns?

POA ceases on death might be the first problem. Only a Executor can sell the deceased estate land. Normally the contract is prepared and state law has certain requirements. One being the vendor is the legal owner etc...

You should refer this to your solicitor (not conveyancer) to determine is vendor has authority to contract or you could lose title. It may be perfectly OK. Think of the cost as insurance over title.

 

[SK Investments]

Paul and Terry,

Would you also recommend title insurance to the OP?

 

[Paul@PFI]

I would seek legal advice. The lawyer may recommend it but I suspect something more needs to be done. The insurer may decline the claim if the issue is blatant and defective.

 

[CHAOS]

The vendor - is the one with the power of attorney. Yes they are using a budget conveyancer. The co title owner died 50 years ago, 5 years ago poa was given to child for remaining patent/ title holder. There was a delay in obtaining contract and agent advised deceased party still on title and therefore poa doesn't have poa over the deceased party. I was surprised that their solution was a stat dec.

 

[Terry_w]

The vendor - is the one with the power of attorney. Yes they are using a budget conveyancer. The co title owner died 50 years ago, 5 years ago poa was given to child for remaining patent/ title holder. There was a delay in obtaining contract and agent advised deceased party still on title and therefore poa doesn't have poa over the deceased party. I was surprised that their solution was a stat dec.

Stat dec is meaningless and no solution. How is the deceased going to sign a transfer form - ask that to their conveyancer. I don't think there are any easy solutions to this one.

 

[Macca]

Perhaps the agent needs to say to them I can't sell it like this, might cause them to act and get a solicitor to sort it out before the other owner dies and it all needs to go through probate before sale.

I find it interesting how many things can go wrong with legal stuff

 

[Paul@PFI]

The vendor - is the one with the power of attorney. Yes they are using a budget conveyancer. The co title owner died 50 years ago, 5 years ago poa was given to child for remaining patent/ title holder. There was a delay in obtaining contract and agent advised deceased party still on title and therefore poa doesn't have poa over the deceased party. I was surprised that their solution was a stat dec.

Conveyancers and legal issues are like water and oil.

 

[CHAOS]

Do real estate agents read the contracts of sale themselves?


This agency plans to auction this property tomorrow. S32 was only ready 3 days ago. Deliberate? Insufficent time for porspective purchasers to throughly read through contracts.

 

[Terry_w]

Do real estate agents read the contracts of sale themselves?

I think it would be rare for an agent to read the contract. Buyers don't even read it!

 

[perthguy]

I don't think it is an issue to have a deceased person's name on the title. I bought a house in Melbourne at a deceased estate auction. I don?t recall any holdups with settlement relating to a deceased person?s name on the title.

 

[Jaggannath]

I don't think it is an issue to have a deceased person's name on the title. I bought a house in Melbourne at a deceased estate auction. I don?t recall any holdups with settlement relating to a deceased person?s name on the title.

Someone with actual legal cred can respond, but I imagine that's different where they're the sole owner, as their estate will already have been dealt with by the executor prior to being able to list.

 

[Terry_w]

If the probate has been granted and the executor is still around then often the title isn't transfer to the executor first but kept in the dead dudes name and then at settlement a simultaneous settlement is done.

I did this recently for a client - using a property lawyer for the conveyancing.

In the ops situation there is no executor or administrator so no one who can legally sign a transfer document.

 

[perthguy]

If the probate has been granted and the executor is still around then often the title isn't transfer to the executor first but kept in the dead dudes name and then at settlement a simultaneous settlement is done.

That's what happened with the property I bought which is why it was so straightforward I guess.

In the ops situation there is no executor or administrator so no one who can legally sign a transfer document.

Ah, I see. I guess that could cause a problem.

 

[CHAOS]

The contract of sale states there is no mortgage on the property but the title page lists a registered mortgage and the s27 certificate also lists a mortgage.

We raised concerns with the agent. His response was there is no time to sort this out so if you are not comfortable don't bid.

So its buyer beware and when you do do your homework and ask questions its too bad if you don't like it don't bid. Obviously morals and ethics are not a legal requirement.

 

[Terry_w]

This could make the contract voidable by the purchaser. Seek legal advice as it may be possible to win, and then pull out later if need be,