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Awhile back, I completed the probate of an Estate for property of a middle-aged gentleman who died unexpectedly but who had created (through another attorney) an Estate Plan that included a Will, Trust and Revocable Trust. The attorney had him sign a Quitclaim Deed that would have transferred his home into the Trusts in the event of his death or incapacity. The home could be administered or sold by his Successor Trustee. However the Quitclaim Deed was never recorded. When his brother (Successor Trustee), brought me the documents the original Quitclaim Deed was still in the folder. This failure to record the Quitclaim Deed creates a potential problem for the sale of the home by the Trust. In Missouri there are two schools of thought with respect to the law: 1) Some believe that the Successor Trustee would have the authority to record the Quitclaim Deed and complete the transfer so that the Trust would be able to sell the home and distribute the proceeds to the heirs of the deceased. 2) Other legal scholars believe that by not recording the Quitclaim Deed it was evidence that the brother had not committed to transferring the property to the Trust. Obviously, having to litigate over the issue of whether the Successor Trustee had the authority to record the Deed did not make much sense. The real question was whether or not a title insurance company would be willing to insure title of the sale of the house if the original Quitclaim Deed was recorded by the Successor Trustee as opposed to probating the property and selling the property via the personal representative of the probate Estate. I spoke to several title insurance companies and could not find one that would be willing to insure the property or give title insurance for purpose of the sale, and since buyers would not accept the purchase of the property without title insurance, the property or the home had to be probated. The recording of the Quitclaim Deed would have been minimal cost of less than $50 and would have solved the problem and allowed the sale of the home to proceed, also at minimal cost under the authority of the Successor Trustee to the Trust. However because the home had to be probated along with some miscellaneous other accounts that also had not been transferred into the Trust the Estate paid almost $10,000 in additional costs that could have been avoided.

Sometimes it is convenient for a husband and wife to use a Power of Attorney to manage property or real Estate such that only one party needs to sign any kind of documents related to such property. Many years ago I had a client who was a traveling salesman essentially in the United States but he lived in South Africa with his wife. He and his wife had decided to move to England and were selling their house in South Africa. However the client did not want to return for the closing as he had important sales calls to make in the United States that he would have to interrupt. I suggested that we do a Power of Attorney for him and contacted the closing agent in South Africa to determine whether such Power of Attorney if faxed to South Africa would permit the wife to sign the closing documents on behalf of the husband instead of him returning to South Africa. I was able to determine the information that the closing agent needed for that to happen, and we created a Power of Attorney for the husband that authorized the wife to sign on his behalf. We then faxed a copy of that document to South Africa and she was able to do the closing by herself and then fly to England where he would meet her after he completed his business in the United States, rather than him having to return to South Africa.

A gentleman and his wife had some property that was not jointly owned at the completion of their Estate Plan. In particular, there was a $300,000 plus farm that was solely in the husband's name. As with all Estate Plans I strongly encourage the client to move all property into his/her Trust so that in the event of unexpected circumstances – the client’s incompetency or death - the Successor Trustee would be able to manage and administer the property. However, the farm in question was being sold and since the closing was two weeks away he felt it was unnecessary and it would just overly complicate the closing, so he decided not to put the farm into his Trust. As bad luck would have it, the husband died the following week before the closing could occur and a probate Estate had to be opened and administered taking months to complete before the closing on the farm could take place. One of the big advantages of doing a Trust in transferring your property into the Trust is that you avoid probate completely as probate can cost significant dollars and is almost always two to five times more expensive than an Estate Plan.

A client who was recently divorced was concerned because his ex-wife and her brother (his ex-brother-in-law) were the personal representatives of his Will. While Missouri law would eliminate the ex-wife's claim to be personal representative and possibly the ex-brother-in-law, it would leave his Will without personal representatives, or in the charge of his ex-brother-in-law. We had a conference to talk about the situation and discussed changing personal representatives but the client decided to think about it further and delay. After all he was only 42 years old and didn't expect his Will would be needed in the near future. I reminded him several times about the situation but he still procrastinated. Approximately one year after initial discussion I received a phone call from his new fiancé asking me whether or not he'd completed changing his Will as she expected to be involved in the Will and the ex-wife and former brother-in-law were still the only personal representatives. I told her that he had not completed it but I encouraged him to do it and it would be something we could do fairly soon if he'll agree to move forward. She told me she was in the ICU and that the potential client was dying of lung cancer. I asked whether he was able to communicate. Her answer was no. The client died of lung cancer prior to completing the update to his Will which at the very least would mean there could be litigation with respect to what the personal representative should be, whether the brother-in-law should handle it or assuming that the ex-wife and former brother-in-law were excluded under Missouri law, and who the personal representative should be. Procrastination with Estate planning can result in bad situations and significantly increased cost because of unexpected circumstances.

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