IN Underwriting References

Escrows

State Licensure

In Indiana, any employee who has the authority to initiate wires, cut checks, or prepare, edit, or sign CD’s and ALTA Settlement Statements has to have an Indiana Title Producers License.

Life Estates

Indiana has a Transfer on Death Act that covers real estate. You’re correct, they TOD beneficiaries do not need to join in the execution of a deed/mortgage as by statute, they have no present interest in the property. The owner has to die first.

That said, you’ll find many attorneys will screw up the TOD declaration. It needs to be checked against the statute to ensure complete compliance:

https://law.justia.com/codes/indiana/2012/title32/article17/chapter14/

TOD section is IC 32-17-14-11

Litigation Issues

Ex Parte Orders

I would not be comfortable insuring this one. The Judge’s order is an Ex Parte Order, becomes a temporary order and is subject to being rescinded should she show up and object. That’s not a good situation for us to insure the buyer when potentially the court could rescind the order in its entirety. Nothing says reversal like an Ex Parte Order where the affected party has no idea what’s going on and has been denied their 14th Amendment Due Process rights.

Probate & Estates

TODI

Indiana has a Transfer on Death Act that covers real estate. You’re correct, they TOD beneficiaries do not need to join in the execution of a deed/mortgage as by statute, they have no present interest in the property. The owner has to die first.

That said, you’ll find many attorneys will screw up the TOD declaration. It needs to be checked against the statute to ensure complete compliance:

https://law.justia.com/codes/indiana/2012/title32/article17/chapter14/

TOD section is IC 32-17-14-11

Heirship Conveyances

the real estate can be transferred with a Devolution Affidavit or an Heirship Affidavit without requiring a probate provided that 7 months have passed since the date of death of the decedent. The Devolution Affidavit is the one most commonly used:

As of July 1, 2020, certain changes went into effect regarding Indiana’s Probate and Trust statutes pursuant to Senate Enrolled Act 50. Once such change was Indiana Code § 29-1-7-3 regarding the devolution of real property of a decedent. This statute may provide an avenue for distributees to transfer real property without opening a formal Probate Estate. Under Indiana Code § 29-1-7-23, when a person dies, the person’s real property passes to persons whom it is devised to by their will, or in the absence of a will, to the person’s heirs at law. This passing of real property is, however, subject to the possession of the property by a personal representative if a formal Probate Estate is opened, the election of the surviving spouse and the expenses of administration and the payment of other claims and allowances. Under the changes to Indiana Code § 29-1-7-23, a person can sign and record a devolution affidavit to establish prima facie evidence of the passage of title to the real property. Under the changes to the statute, that affidavit may contain the following information: (i) the decedent’s name and date of birth; (ii) a statement of the affiant’s relationship to the decedent; (iii) a description of how the decedent acquired an ownership or leasehold interest in the real property including deeds or other instruments recorded in the Office of the Recorder; (iv) a legal description of the real property as it appears in deeds or other instruments; (v) the names of all distributees known to the affiant, (vi) an explanation of how each interest in the property was acquired; and (vii) how any fractional interest to each distributee was calculated and how interests in the real property will be apportioned. The devolution affidavit can then be presented to the county auditor where the real property is located, and then is also recorded with the Office of the Recorder in the same county. A devolution affidavit, properly filed and recorded in good faith, may be relied upon as prima facie evidence of transfer of the decedent’s title to the real property interest, if the affidavit is filed and at least seven (7) months have elapsed since the decedents death, the clerk of a court has not issued letters testamentary or letters of administration to a court appointed personal representative within the time limits to open a formal Probate Estate and the court has not issued an order otherwise preventing this chapter from applying to the real property. Several of the changes to the statute that took effect on July 1, 2020, were changes that clarified information in the statute and the affidavit procedure. There were several changes that are worth noting. First, the addition to the word “may” regarding the information that is contained in the devolution affidavit was a significant change. Whereas, the prior statute required certain information to be included in the devolution affidavit, the changes ensure that the affidavit can still be filed absent some of the information that used to be mandatory. Additionally, one of the big changes to the statute that is of importance to note is that the devolution affidavit no longer requires a statement in the affidavit that seven (7) months has elapsed since the decedent’s death. This means that a devolution affidavit could be filed prior to seven (7) months from the decedent’s death. In light of the statute still containing the provision for reliance on the devolution affidavit after seven (7) months from the decedent’s death, it still may be beneficial to wait until after seven (7) months to file and record the affidavit.

Indiana Code 29-1-7-23

Sec. 23 . (a) When a person dies, the person's real and personal property passes to persons to whom it is devised by the person's last will or, in the absence of such disposition, to the persons who succeed to the person's estate as the person's heirs;  but it shall be subject to the possession of the personal representative and to the election of the surviving spouse and shall be chargeable with the expenses of administering the estate, the payment of other claims and the allowances under IC 29-1-4-1 , except as otherwise provided in IC 29-1. (b) A person may sign and record an affidavit to establish prima facie evidence of the passage of real estate title to distributees under this section.  An affidavit under this section may contain the following information: (1) The decedent's name and date of death. (2) A statement of the affiant's relationship to the decedent. (3) A description of how the following deeds or other instruments vested in the decedent an ownership or leasehold interest in real property, with a cross-reference if applicable, under IC 36-2-7-10(l) to each deed or other instrument: (A) Deeds or other instruments recorded in the office of the recorder where the real property is located. (B) Deeds or other instruments that disclose a title transaction (as defined in IC 32-20-2-7 ). (4) The legal description of the conveyed real property as it appears in instruments described in subdivision (3). (5) The names of all distributees known to the affiant. (6) An explanation of how each interest in the real property passed upon the decedent's death to each distributee by: (A) intestate succession under IC 29-1-2-1 ;  or (B) the decedent's last will and testament that has been admitted to probate under section 13 of this chapter, with references to: (i) the name and location of the court that issued the order admitting the will to probate;  and (ii) the date when the court admitted the decedent's will to probate. (7) An explanation of how any fractional interests in the real property that may have passed to multiple distributees were calculated and apportioned. (c) Upon presentation of an affidavit described in subsection (b), the auditor of the county where the real property described in the affidavit is located must endorse the affidavit as an instrument that is exempt from the requirements to file a sales disclosure form and must enter the names of the distributees shown on the affidavit on the tax duplicate on which the real property is transferred, assessed, and taxed under IC 6-1.1-5-7 . (d) Upon presentation of an affidavit described in subsection (b), the recorder of the county where the real property described in the affidavit is located must: (1) record the affidavit;  and (2) index the affidavit as the most recent instrument responsible for the transfer of the real property described in subsection (b)(4). (e) Any person may rely upon an affidavit recorded with the county recorder: (1) made in good faith;  and (2) under this section; as prima facie evidence of an effective transfer of the decedent's title to the real property interest under subsection (a) to the distributee described in the affidavit. (f) If: (1) at least seven (7) months have elapsed since the decedent's death; (2) the clerk of the court described in subsection (b)(6)(B) has not issued letters testamentary or letters of administration to the court appointed personal representative for the decedent within the time limits specified under section 15.1(d) of this chapter;  and (3) the court described in subsection (b)(6)(B) has not issued findings and an accompanying order preventing the limitations in section 15.1(b) of this chapter from applying to the decedent's real property; any person may rely upon the affidavit described in subsection (e) as evidence that the real property may not be sold by an executor or administrator of the decedent's estate to pay a debt or obligation of the decedent, which is not a lien of record in the county in which the real property is located, or to pay any costs of administration of the decedent's estate.

Streets

Streets Exception

Metes & Bounds

We must take exception to it on all metes and bounds because the streets may have either shifted over time or more land is being used for it than how large the road legally is. The only way to remove it would be to require a staked survey that accurately depicts the road and research the roads chain to see if it can be removed.

Abandonment & Vacation

add an exception for the vacated street/alley even though they had an exception for the Notice vacating them. Sometimes, the vacation ordinance will grant an easement to public utilities, sometimes not. It’s always a good idea to add:

Rights, if any, of public utilities installed in vacated ________________ Street and the vacated, unnamed alley prior to the vacation thereof together with the right to enter onto the Land for the purposes of maintaining, repairing and replacing said utilities.

In some states, adjoining landowners may have a statutory easement for ingress/egress if the vacation would land lock them though it’s rare that you’ll have that situation.

Tax Sales

Effective immediately, we have revised our Indiana tax sale requirements. You will recall, that previous underwriting guidelines required a quiet title action if a tax deed was found within the past 10 years. One of the basic changes in our new guidelines is a reduction in the time frame after execution of a tax deed from 10 years to 3 years. After 3 years have passed since the execution of the tax deed, we will no longer require a quiet title to insure the tax sale.

Additionally, we have eliminated the quiet title requirement within the 3 years period when presented with a smaller liability owner’s policy from another underwriter if substantial improvements have been made to the property. Note: use of the substantial improvements option requires underwriter approval.

Our new tax sale requirements are as follows:

TAX SALE REQUIREMENTS: A search of the Land revealed a tax deed within the past 3 years. In order to insure the proposed transaction, we require one of the following:

 A copy of a prior Owners Policy insuring the Seller/Borrower; OR

 Quitclaim Deeds/Releases from:

 All parties with an interest in the Land at the date of tax sale; and

 All parties who acquired an interest between date of tax sale and date of commitment but have not conveyed or released their interest; OR

 A prior Owner’s Policy from another underwriter insuring the Seller/Borrower in an amount within 90% of, equal to, or greater than the amount of insurance on the current transaction. Seller in the current transaction must convey by general warranty deed; OR

 A prior Owner’s Policy from another underwriter insuring the Seller/Borrower for less than an amount within 90% of the proposed amount of insurance in the current transaction if Seller/Borrower has proof of having added substantial improvements the value of which combined with the liability amount of the prior policy is sufficient to support the proposed amount of insurance. Seller in the current transaction must convey by general warranty deed. (NOTE: Use of this option requires underwriter approval); OR

 A Quiet Title suit in which the following parties are properly named and served:

 All parties with an interest in the Land at the date of tax sale; and

 All parties who acquired an interest between the date of tax sale and the date of the Quiet Title complaint but have not conveyed or released their interest.

 If the Quiet Title option is chosen, the current transaction cannot close until the occurrence of one of the following:

 The expiration of the appeal period (30 days after the quiet title judgment) if service was personal, copy, registered or certified mail, or if an appearance was filed by a party.

 The expiration of the period for filing a TR 60(B)(4) motion (1 year after quiet title judgment) if service was by publication only; OR

 Passage of 3 years from date of tax deed.

Trusts And Trustees

Trust Vesting - Trust vs. Trustee

When vesting in name of Trust only, The conveyance is not void; this is a guideline rather than a hard rule. See below:

IC 30-4-2-6(a) provides that the trustee takes title to the trust property. The definition of trust property in IC 30-4-1-2(26) states that trust property is property acquired by the trustee for the trust regardless of whether the trust property is titled in the name of the trustee or the name of the trust.