When the property was sold on contract the sellers right to payment was personal property due to equitable conversion - the buyers held real estate.  When the escrow deed is delivered the doctrine of relation back says the delivery occurred at the date of the contract.  Wife could not have transferred real estate away after the date of the contract so the real fight becomes whether the escrow agent is authorized to release the deed.
 
John E. Coonley
Coonley & Coonley
121 First Avenue N.W.
P.O. Box 397
Hampton, Iowa 50441-0397
 
641-456-4741 (phone)
641-456-2359 (fax)
 

From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of Keith Collins
Sent: Wednesday, February 04, 2009 5:34 PM
To: realestate@iabar.org
Subject: [ISBA RealEstate] Is probate necessary when.......

Listmates:

 

Husband and Wife sold land they owned as tenants in common on contract.  Warranty Deed, abstract, etc. were all placed in escrow and Notice thereof recorded.  Wife dies with balance of $40,000.00 on contract.  Husband is still living.  Wife’s estate is valued at approximately $200,000.00.  Assuming all other assets are owned in joint tenancy or have TOD/POD features, and further assuming no IA 706 need be filed for any reason, does the Will have to be probated just to transfer Wife’s ½ interest in the legal title over to husband?  If no estate is open, when the contract is paid in full and the deed then recorded, does the Buyer have good title?  Would a future examiner of the abstract find fault in title because Wife’s interest in the contract could have been gifted by Will to someone other than the husband, or would tax liens pose a problem because no valuation of the estate is of record?  This may be an elemental question for most of you, but I’m struggling to analyze this properly.  Client’s family sure doesn’t want to probate, but I’m concerned about future title problems.  Thanks for your thoughts and answers.

 

Keith D. Collins

Waverly, IA