Q. I recorded a Quitclaim Deed to place my property into a Living Trust. I have discovered that the surveyor’s legal description contained a significant error which the surveyor has corrected by giving me a new legal description. The error: “….a distance of 275 feet more or less to the TRUE POINT OF BEGINNING.” had to be changed to “….a distance of 266 feet more or less to the TRUE POINT OF BEGINNING.” Can this be considered a simple typo or to the real question how do I get this correction recorded?
A. If you are the trustee of your own living trust, generally you can re-record the deed to correct the legal description. Are you in control of the trust? Make the required changes and request the County Recorder’s office to re-record the document noting the reason on the document. Check with the County Recorder to see if they will require anything else from you. Although it may seem simple now, it may become quite difficult later should there be other trustees, other parties, other owners, etc. I sometimes even see parties use a corrective deed to correct the prior recorded deed. This includes the preparation of a new deed, language explaining why you are doing what you are doing along with references to the prior recording information of the prior deed.

With that said, you bring up a good point. What type of title policy do you have for this piece of property? Transferring via a quit claim deed typically would terminate your title insurance policy on many types of title policies. That, you generally don’t want to do. Pull out a copy of the title policy that you received from the title company when you bought the property. If you are unsure what kind of coverage there is for this type of transfer, then contact the title company to ensure you, as trustee of the trust is now covered. You may even request an endorsement (for a small fee) to the title policy from the title company adding you as trustee of the trustee as additional insured. Some of the newer policies have a built-in coverage for when you place the property into a trust. Your Title Company may be a good place to start.

Q. I, as an attorney, would really appreciate your reply to these questions. In this situation, real property is purchased by single person (A) w/ Persons B & C with title being held as Tenants in Common. A gets married to Person D. Then A, B, & C transfer the real property to a living trust. As per Arizona statutes, the real property was A’s separate property from D, but do any transmutation theories create a title problem down the road if trustees try to sell and D is dead/not available to disclaim any interest via transmutation theory? Would a disclaimer deed from D now be wise? Thanks so much for your great website on a subject that affects property owners in so many different ways.
A. Thank you for your email. In response to your scenario, the risk of transmutation is low and truly based upon an exception rather than the rule. But if D’s spouse is willing to sign a disclaimer now confirming no interest, I would say get it. It just removes the argument from the equation. The idea of transmutation from separate to community asset is rare but is keen of you to consider the issue now while people are being cooperative. You can help your client avoid a certain amount of frustration in the future. I have found however that most of these arguments are not affecting title directly but mostly are in divorce proceedings between the spouses. Typically a transmutation argument does not come into play with such title but it could be an issue you help to remove from the divorce proceedings.

Q. One of my friends needs to have a will and medical power of attorney prepared. Can she obtain these documents from the courthouse? Someone told me there is a kit you can get, but no one knows were to get it. Do you know of anything like that? Please let me know if there is something out there.
A. Like many Courts around, the Maricopa County Courthouse tries make such documents available for its citizens. There is a self service site on the Maricopa Courthouse website. I am not sure how current their documents are but they strive to keep it up. The main link for the Court is the following address: http://www.superiorcourt.maricopa.gov/ssc/sschome.html

The information supplied is of a general nature and should not be relied upon as legal advice. You should consult with your own legal counsel. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

Copyright, John T. Lotardo. All rights reserved. John Lotardo (aka the TITLEMAN™) is Senior Vice-President and General Counsel for Stewart Title & Trust of Phoenix, Inc., and State Underwriting Counsel for Stewart Title Guaranty Company. He is a member of the National Advisory Councils for GoGetEscrow.com, GoGetLoan.com, GoGetNotary.com and GoGetRealEstate.com. For more about John, visit: www.GoGetEscrow.com/Get/Titleman or www.AskTheTitleman.com.