I remember learning an old adage in law school that went something like, “the man who represents himself has a fool for a client.” Consider this scenario. Your mother just passed away and you are her only child. She owned a home, a couple of bank accounts and some valuable works of art. Ten years ago, she wanted to give her house to you because she thought she might have to apply for Medicaid and she was trying to divest herself of assets so she could prove that she didn’t own a home when she applied for those benefits. So she hired a lawyer to prepare a deed conveying the property to you and then she recorded the deed. So far, so good.
The problem is, you already own your own home an hour and a half away and the thought of paying property taxes, homeowner’s insurance and maintenance costs on a second home, did not appeal to you. So rather than spend money on a lawyer to reverse this transaction, you decide to prepare your own deed with the help of Attorney Google. The problem is, Attorney Google is not licensed to practice law in Connecticut and he has no malpractice insurance. A couple of months later, you download a document from the internet and you draft a deed. Then you go to your local bank to have a notary public take your acknowledgment on it, thinking that you’ve done things correctly. Finally, you take the deed to the town clerk’s office and record it. Were you successful reversing this transaction?
After your mom died, you wisely decided to hire a lawyer to do the work to administer her estate. One of the first things the lawyer does is order a title search of your mother’s home. The title search results come back with a note from the title searcher, indicating that there may be an issue with the title to the house. There is a concern that your mom may not have owned the house at her death and that you may still own it. So you ask yourself how can this be? The problem is the title searcher noted that the deed you prepared (attempting to convey the home back to your mother) is not properly witnessed because it’s missing the signatures of two witnesses. Hence, it may not be a valid deed after all.
Connecticut has a statute entitled “Validations re conveyancing defects of instruments recorded after January 1, 1997,” otherwise known as the Validating Act. Among other things, the Validating Act states that any deed made for the purpose of conveying any interest in real property in the State of Connecticut, which was recorded after January 1, 1997, which was attested by either one witness – or by no witnesses at all – is as valid as if it had been executed with witnesses, unless an action challenging the validity of the deed was brought within two years after the deed was recorded.
Under the facts of this case, the Validating Act saved the day. First, the deed at issue in this example, was prepared ten years ago … well after January 1, 1997. Second, although your signature was properly acknowledged by a notary public, it was not properly witnessed by two disinterested witnesses. Nevertheless, no action was brought challenging the validity of this deed within two years of its recording. So in the end, the statute validated the deed and your mother’s home is properly included in her estate.
Imagine if the facts were different though. For example, what if one of your creditors brought a timely lawsuit, claiming that the deed was an invalid conveyance from you back to your mother. If that creditor was successful, the property would not be a part of your mother’s estate and instead, it would be considered your property. That means it would be subject to attachment by that very same creditor for a debt that you owe them.
This is just one of an unlimited number of examples of the bad things that can happen to people when they choose to represent themselves. Thankfully, disaster was averted here but if things were different, you could have been the fool. Don’t be a fool. When you’re faced with something as serious as the example I’ve written about here, do the right thing. Contact a competent lawyer who can help you do things the right way. Chances are, the fix is not as expensive as you think it is.
If you have questions related to the Validating Act or about estates that have unusual real estate issues, please don’t hesitate to call the estate planning and probate attorneys at Cipparone & Zaccaro, PC.
