Monday, February 26, 2007

Closing agents, joint tenancy, tenants in common

In every transaction, we ensure that our clients take title in a manner appropriate to their circumstance. Title companies cannot assist you with this. If they attempt to, they are engaged in the unauthorized practice of law. Not only is the advice you are receiving suspect, but if they are wrong, you will have little recourse against any insurance coverage they have, since most policies have exclusions for illegal activities.

For example, if the seller's attorney prepares the deed without stating how the purchasers are taking title, which is a common occurrence, the new owners are deemed to be tenants in common. If one of them dies, the survivor would keep his or her interest, but the half interest of the person who died would go to his or her heirs and would probably need to go through probate before anything could be done with the property. In the case of unmarried couples purchasing real estate, this would likely mean that the decedent's family would get half the house.

Even for married couples this can be tricky, since their children would have an interest, and a guardian may need to be appointed to effectuate any title transfers or mortgages. In the case of married couples with children from other marriages who take title as tenants in common, the resultant problems could fill a book. In all of these situations, this form of ownership can be financially disastrous for the survivor.

There are three different ways to take title in Illinois, and each situation is different, and requires careful consideration and discussion. If you close at a title company without an attorney representing you, you will get no advice regarding the appropriate way to take title. Any advice you do get should be disregarded, for the reasons previously stated.