This column first appeared in the San Antonio Express News and other Hearst Newspapers on May 24, 2019.
Dear Mr. Premack: Do I need to file this Power of Attorney with the county clerk? My 19-year-old grandson made me a POA. His mother, my daughter, passed when he was 15 years old. The house is not in my name nor his name. The mortgage company won’t talk to either of us about the property. I was told the deed needs to be in his name. How is that done? The taxes are in his name already. The Mortgage has home listed under my daughter’s estate. Do I take the POA to the clerk or does he? D.T.
Let’s start at the beginning and unravel the situation. Your daughter owned a home. She died, leaving one child. No changes have been made to the house title, but the mortgage company refers to her estate and the Tax Assessor has put her son on the tax account. You desire to help sort out the situation, and think the Power of Attorney will help. You do not refer to your daughter having a Will.
Those are the facts. Now let’s look at the law.
When a person dies intestate (without a Will) state law determines who inherits that person’s assets. Categories of family members are outlined in the law, starting with the surviving spouse. Since you do not mention that your daughter was married, we’ll assume she was not married. If so, second in line to inherit is her son.
How is that done? Her son needs to take proper legal action to get the deed into his name. He has several options, all of which require hiring an experienced estate lawyer. The options range from using an Affidavit of Heirship, to using a Small Estate Affidavit, to doing a Determination of Heirship in court. Depending on some very intricate details which he can discuss with his lawyer, title changes when the right legal documents (like a court order) are filed with the county clerk.
Once the deed is in his name, the mortgage company will recognize him as owner. They still have a valid lien against the house, and the mortgage payments must be kept current. They are required by law to allow her son (as the one who inherited the house) to continue paying on the loan, although they may try to get him to refinance if he can qualify. Thus, hiring a lawyer to solve the title issue also solves the communication issue with the mortgage company.
Now let’s address that Power of Attorney. If you are naming your grandson as Agent, stop. Walk away from the POA. Revoke it or be sure it was never signed at all. It is illegal for him to make you a POA since he is not licensed to practice law. If he downloaded an internet form, how do you know it follows state law, is valid, is up-to-date, and that signing it will help? Plus, you have no authority over your daughter’s house which means your grandson as Agent would likewise have no authority. He must act for himself to fix the deed issue, not act as Agent for you.
Powers of Attorney can be very valuable tools. If the situation were different – say your grandson was more experienced and the problem related to your own house. You could then sign a proper legal Durable Power of Attorney naming his as your Agent. He as Agent could help you handle any legal problems related to your own house. Power of Attorney must be recorded with the county clerk only when the Agent uses it to sign some document that must also be recorded with the county clerk. When filing is necessary, either party (you or your grandson as Agent) could take it to the clerk.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.
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