Posted by Elizabeth Soliday on 2/27/09 10:54pm
Msg #279019

Deceased on DOT

I had a signing tonight where the deceased was being treated as a non-borrowing spouse. I had the borrower cross out her name (everywhere and) on the DOT and initial and accidently let him initial my cross out in the jurat! GRR. I don't remember, are name cross outs okay on the DOT? Not like I had another choice with the late signing

Of course I didn't notice the borrower's initials in my jurat till I got home. I just crossed them out and initialed/dated, what a mess. No biggie, I might have to go back tomorrow, but better that than sending it off all jacked up!

Reply by Barbara___IL on 2/27/09 11:23pm
Msg #279021

I don't have any answers, but I have a lot of empathy for you. Wouldn't you think someone somewhere would have known the person was deceased before the documents were sent to you?

Reply by Linda_H/FL on 2/27/09 11:33pm
Msg #279022

Depending on your state laws...

they may already be aware of the deceased party - and may already have an original Death Certificate or Certified Copy to record prior to the DOT being recorded...hope there's not a problem created with the alteration of the DOT....common sense dictates that you can't change the title vesting - other than in the case of a misspelled name....

Reply by Pat/IL on 2/27/09 11:56pm
Msg #279026

Re: Depending on your state laws...

Linda, I have to disagree with you on two points. First, why would the lender include the spouse on the documents if they had known she was dead? And, a dead person can't own real estate in this country, or sign their name, so why would common sense lead you to believe that crossing out the name would be wrong? I think that, considering the options presented to Elizabeth at the time, with nobody available to advise, she made the best choice.

Reply by Linda_H/FL on 2/28/09 7:01am
Msg #279034

Re: Depending on your state laws...

I've had signings where the deceased spouse's name is still on title - it's called someone didn't go in and remove that person's name by hand - so depending on the document prep program/system being used her name is just inserted everywhere...

And I'm sure you know that whoever prepares docs is not ALWAYS right....it could have been a clerical error on the preparer's part...no??

Reply by Linda_H/FL on 2/28/09 7:08am
Msg #279035

Sorry Pat....as to this statement..

"so why would common sense lead you to believe that crossing out the name would be wrong"

Why would common sense lead YOU to believe that changing the vesting of title at the table by crossing out a name is RIGHT? Not being nasty but we, as NSA's, can't...MHO

Reply by Becca_FL on 2/28/09 7:49am
Msg #279036

Re: Sorry Pat....as to this statement..

I totally agree with Linda. It's not uncommon to get docs with the name of the deceased person in the vesting verbiage and under the signature line. I would not have altered anything, but would have asked the borrower if title was aware of the deceased owner and whether or not title requested an original death cert for recording. If a death cert was available, I would send it back with the package.

Again, it is not our place to alter any docs without authorization.

Reply by Pat/IL on 2/28/09 11:14am
Msg #279072

Re: Sorry Pat....as to this statement..

My opinion was based on the statement by Elizabeth that there was nobody available by phone to authorize anything. I can't see those documents getting through the closing process with the deceased included in the transaction.

Whether the lender knew or not, I couldn't say. My point was that the documents are almost certainly headed for redraw anyway and, in the absence of any direction from anyone with authority, I think Elizabeth made the only choice that might avoid a resign.

Reply by Linda_H/FL on 2/27/09 11:36pm
Msg #279023

Re: Deceased on DOT..further...

"Of course I didn't notice the borrower's initials in my jurat till I got home. I just crossed them out and initialed/dated, what a mess. No biggie, " that wouldn't fly here - we can't change the certs later on without going back out for a resign...

"I might have to go back tomorrow, but better that than sending it off all jacked up!"...and what....backdate???

Reply by Elizabeth Soliday on 2/28/09 12:01am
Msg #279027

Re: Deceased on DOT..further...

Here we go with the "oh holier than thou"... I hadn't thought of the backdating issue Linda, so chill.

Reply by Becca_FL on 2/28/09 7:59am
Msg #279039

Holier than thou? Lighten up, Lizzy.

YOU made the choice to post what you did and asked for opinions. Linda is of the opinion that what you did was wrong. Where do you get holier than thou? You should know better than to alter docs without approval especially because the non-ob being deceased would have NO affect on your notarial duties. Holier than thou? Who died and made you the title agent in the transaction?

Reply by jba/fl on 2/28/09 8:56am
Msg #279052

Re: Holier than thou? Lighten up, Lizzy.

Careful Becca - Lizzy Borden comes to mind and you may get 40 whacks with an ax....

Reply by Pat/IL on 2/27/09 11:45pm
Msg #279024

Clearly the spouse cannot sign the documents, so crossing out the former person's name, or leaving it as is, was probably as good as a coin flip. My guess is that they will redraw the documents anyway.

Since the borrower probably did not indicate he was married on the application, the spouse was probably found to be a title holder and, thus, her name included on your documents. If the spouse did hold title to the property, the title company will have to determine the successor(s) of her interest. If the husband and wife had rights of survivorship, it's probably a matter of producing a death certificate and the surviving spouse signing an affidavit.

If you are in a community property state, well, I don't know how that would work. The point of my answer to you, Elizabeth, is that, since you were unable to reach anybody during the signing, you probably could have doodled all over the documents and the results would be the same. Or maybe not. I could be wrong.

Reply by Elizabeth Soliday on 2/28/09 12:08am
Msg #279028

In my experience, and from what I've heard from others, Countrywide has poor service when it comes to updating accounts. This gentleman told me he'd sent them the death certificate quite awhile ago to remove her from the account - but I am not sure what the entire process is, so I don't know that it was them specifically.

Reply by CaliNotary on 2/28/09 12:10am
Msg #279030

I had the same thing happen to me once, don't remember who the lender was. I was told to abort the signing and they did a redraw.

Reply by sue_pa on 2/28/09 9:13am
Msg #279055

I run into this about once a year. Usually they're older and it doesn't phase them too much. One time, I asked a man where his wife was as we were sitting down. He started to cry. The teenage son who was there started to cry. His wife had died just a few weeks prior. I probably started to cry. Even though I did nothing wrong, I would gladly have dropped through a hole in the floor and disappeared.

Reply by jba/fl on 2/28/09 8:52am
Msg #279049

Countrywide has been very good to me. Can

update anything and everything online. Your info sucks...

Sometimes, just as in "real" life, a person just has to take the bull by the horns and take responsibility for seeing that their own affairs are in order, endeavoring to do for themselves, instead of letting 'big daddy' do it for them. Called Accountability, Responsibility and other equally long words.

Reply by Carole Breckbill on 2/28/09 7:57am
Msg #279038

I don't see how this transaction can possibly be legal without more than just the production of a death certificate. (IMO - I'm not a lawyer) The spouse would have needed first to get the property in his name via the courts and "then" refinance, or whatever. Even if he were the executor of his wife's estate, there are still many legal hoops to jump through to ensure that the estate is properly handled. The spouse needs to produce the proper court documents that show the he/she is legally entitled to do these transactions. (Who knows if there are children with valid claims on the estate, for example?)

This case points up another issue that really ticks me off - the unavailability of someone (the LO's cell phone) to call "after hours" to get answers. Our job is to get the documents signed - on the other hand, we are also entrusted with the obligation to ensure that it's done correctly. Fortunately, we don't see these kinds of odd-ball situations often - but they do exist! Yet we are asked to go out late at night, nights and weekends, with no "authority" to call. I may have done what the original poster did and go through with the signing just as if the two spouses were in different cities and needed separate notarizations - and hold the docs until I could talk with someone at the company who wasn't available when the signing was taking place.

Reply by Linda_H/FL on 2/28/09 8:05am
Msg #279041

"I don't see how this transaction can possibly be legal without more than just the production of a death certificate"

That's why I said "depending on your state laws"....it also depends on how they held title - opening an estate through probate court may not have been necessary, again and I stress, depending on state law and how they held title. (way too complex to go into here)...

Reply by sue_pa on 2/28/09 9:40am
Msg #279060

I agree with Linda. In PA, most spouses don't have to do anything with their deed when one passes ... if it was properly drawn. (another thread for another time ... North **** Deed preparing out of state deeds that aren't exactly in proper form ... amazing ). Recording a Death Cert if not even necessary. Just a recital in the deed when the remaining spouse sells the property. That said, most title companies will require a Death Cert for their file.

Reply by Pat/IL on 2/28/09 11:33am
Msg #279076

The succession of title can be complicated, but it also be very simple. Most states recognize at least two of the following tenancies:

Tenancy in Common: Separate ownership of equal or varying percentages. Probate would most likely be necessary to determine the heirs of the deceased. A will could speed up the process, if it is not contestted.

Joint Tenancy: Incuded a right of survivorship. Decedent's interest transfers upon death to the surviving joint tenant(s).

Tenancy by the Entirety: Only available to husband and wife. Includes a right of survivorship. Decedent's interest transfers to spouse upon death.

This is oversimplified and does not take into account the different methods used in different states to record the transfer of ownership interest. Nor does it take into account the way things work in community property states, of which I am not familiar.

In Illinois, I believe Elizabeth's documents might have had a chance of getting through to funding with a death certificate and a deceased joint tenancy affidavit recorded with the mortgage - depending on whether the lender would accept the documents as is.

I still think it's a redraw in either case, but that Elizabeth's decision at least gave it a chance to fly - again, based on the absence of any advice available at the table.

Reply by MW/VA on 2/28/09 8:44am
Msg #279047

We know we sometimes run into situations where we have to make a judgement call.
I would not have altered the DOT. The DOT is the most critical of docs because they generally won't record if they're all marked up. I hope you talk with the tc before shipping the package, because it sounds like it may need to be redone. The title issue, death certificate, etc, if for the tc, not us. We don't make those decisions. IME there is usually a QCD to update title to the property, but I don't know that it's necessary with a surviving spouse. Again, it's not my call.

Reply by sue_pa on 2/28/09 9:09am
Msg #279054

... because they generally won't record if they're all marked up...

I always wonder when I read these type statements where they originate? Certainly not in the title industry ... perhaps just 'signing agent' theories.

Reply by MW/VA on 2/28/09 1:08pm
Msg #279084

Yes--very careless wording on my part. I should have phrased it, "I've heard from some tc's".

Reply by Becca_FL on 2/28/09 1:17pm
Msg #279085

So true, sue.

I remember when the roll on white out was invented. Post-closers coast to coast were rejoicing and singing its praises. There's nothing a little roll on white out and an IBM Selectra couldn't fix.

Reply by Philip Johnson on 2/28/09 10:23am
Msg #279064

He may not have the authority to refi here in WA.

I'm no Perry Mason, but I had something similar happen where the survivor and their three kids all had to sign the refi papers, because the lady had left her share of the house in her will to their kids.
I have attached a link that kind of explains this here in the Evergreen state.

http://www.probate-litigation.com/B-Entitlement-Property.htm

Reply by MikeC/NY on 2/28/09 2:57pm
Msg #279087

"I had a signing tonight where the deceased was being treated as a non-borrowing spouse. I had the borrower cross out her name (everywhere and) on the DOT and initial"

Someone at title obviously dropped the ball; the way it's done here is that an affidavit is prepared based on the death certificate, and that clears the exception to title. Sometimes there's a QCD involved, but you need SOMETHING to backup the fact that you're removing a name from title. Striking the name and having that initialed doesn't cut it; if it did, that would revolutionize divorce settlements... You may be looking at a redraw, and if so maybe they'll do it the right way the next time (and you might get paid twice).

Personally, if I was faced with that problem - without a document changing the title vesting and unable to contact the TC - I would have just adjourned the signing. Situations like this require decisions that are above my pay grade...

Reply by Susan Fischer on 2/28/09 11:08pm
Msg #279121

Absolutely, Mike. Waaay over our pay grade... n/m

Reply by SharonMN on 3/2/09 11:16am
Msg #279213

I would just stop the signing as soon as I found out. This is a "not ready to close" loan. Obviously the docs are not right, all necessary parties are not able to sign, and it's up to title/lender to fix it before involving a signing agent.

Just curious - why was this issue not identified when you called to confirm the appointment?