1. Pre-Approval of Torrens Documents
MCRA Torrens Workshop November 15, 2017 Presenter: Susan Ledray Examiner of Titles, Hennepin County
Hennepin County

2. “I have some documents for pre-approval, whatever that means.”
Hennepin County

3. Examiner of Titles “Pre-approval” requires legal sufficiency
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Examiner of Titles “Pre-approval” requires legal sufficiency
The certification or directive is directed to the Registrar of Titles
Hennepin County

4. Impact of Pre-Approval on Customers
Extra step, extra cost in some counties
If documents are deficient, must fix them “now”
Easier to fix “now” then years later when a subsequent buyer/lender objects to title
Have assurance the conveyance is good
Examiner rejection is leverage with the client who otherwise insists on recording defective documents
Examiner requirements sometimes differ by county
Expected Filing fees could be impacted
Hennepin County

5. Basis of approval requirement
Statute requires examiner approval before document is recordable:
Trust Deed , Condominium Declaration
Statute requires examiner approval before a new certificate of title can be issued: Divorce decree/SREDJ, other court orders divesting owner of an estate in the land , Probate Decree/Deed ,
Under general authority as legal advisor to the Registrar (508.12, ) pre-approval is required in some counties for:
Claim of Unregistered Interest, Power of Attorney from individual, TODD given effect, other
Hennepin County

6. Handout
Hennepin County

7. Certificate of Title management
Registrar and Examiner should have a mutual understanding of what the certification or directive means, and how to manage the certificate of title
Hennepin County

8. Hennepin County

9. Examiner Certification Probate and Divorce
Certify as legally sufficient or write a rejection memo
Easy fix (correct the documents, get missing document)
Time will correct it (30 days PR, 70 days notice to commissioner, 5 years for contract cancellation, etc.)
Back to family or probate court
Proceeding Subsequent
Hennepin County

10. Hennepin County

11. PR Deed or Decree is required to address fee or any other interest of a decedent, unless joint tenancy, life estate, or TODD
Until 1965 a proceeding subsequent was required with any PR Deed or Decree
Under Registrar can accept the documents for filing, but “no certificate shall be issued…except upon the written certification of the examiner of titles …or upon the order of the district court* directing the issuance thereof.”
Tip: To avoid confusion, instruct filer to obtain examiner certification before filing.
* The Court Order should be in a Proceeding Subsequent The Decree of Distribution is not sufficient without examiner certification.
Hennepin County

12. Probate- Where? Probate for MN real property must be done in Minnesota
If decedent’s estate probated in Florida, need Ancillary Proceeding in Minnesota Foreign will is filed in MN probate court and admitted to probate; letters issued; gives MN creditors opportunity to object
to 206 Domiciliary Foreign PR
Hennepin County

13. Misconceptions: I don’t need probate because….
Property devolves upon death Beachside case
There is a will
We are all the heirs and we agree
We thought the title was in joint tenancy (commence probate or reform the deed in a proceeding subsequent to create the joint tenancy)
Registrar and Examiner must follow and and the above shortcuts are not permissible.
Hennepin County

14. Property devolves upon death
Doesn’t mean probate can be avoided
DEVOLUTION OF ESTATE AT DEATH; RESTRICTIONS.
The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the person's property are subject to the restrictions and limitations contained in chapters 524 and 525 to facilitate the prompt settlement of estates. Upon death, a person's real and personal property devolves to the persons to whom it is devised by last will or to those indicated as substitutes for them in cases involving lapse, disclaimer, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to the decedent's heirs, or to those indicated as substitutes for them in cases involving disclaimer, renunciation or other circumstances affecting devolution of intestate estates, subject to the provisions of sections and , the allowances provided for by sections and , to the rights of creditors, elective share of the surviving spouse, and to administration.
Hennepin County

15. Probate – Informal or Formal
Informal is handled by the probate registrar without hearings
No disputes, no orders are needed; 2 weeks published notice and mail to creditors, spouse, children, commissioner of human services, all interested persons; letters issue, PR sells or distributes real estate once 30 days have lapsed since letters were issued; closing statement not required
If a dispute or ambiguity exists, convert to Formal or start as Formal
Will be a Decree of Distribution, or PR Deed with Order to Sell and Order Approving Sale
Formal takes longer, in part because a hearing is required
Hennepin County

16. What are we checking?
Hennepin County

17. Title Standards White Pages
Very useful guide for the examiner- reference those for complete information
Fourteen pages for probate
Testate vs. Intestate
Formal supervised or unsupervised vs. Informal
Five pages for Conservator and Guardian Deeds
Hennepin County

18. Typical Informal Probate
Informal Probate must be filed within 3 years of death
Application to probate registrar; publication and notice to interested parties
Registrar Statement; admitting will to probate, identification of homestead by legal, determination of heirs/shares
Letters Testamentary or Letters of General Administration; effective 30 days after issued
PR Deed of Sale or PR Deed of Distribution (Consent/joinder of spouse and/or specific devisees) Sale to heir for less than FMV – treat as a distribution and require Notice to Commissioner
Distribution requires Notice to Commissioner. Will: Distribute to specific devisee, if any or via residue. No will, distribute to heirs in shares as set out in the Registrar’s Statement.
May or may not file documents to “close” the probate- doesn’t matter for title purposes. Court closes the case administratively
Hennepin County

19. Notice to Commissioner
With any Distribution, the Affidavit of Service of Notice to Commissioner of Human Services, with Notice attached is required. Minn.Stat. Section 524.3,801(d). (See also the White Pages to the Title Standards, Page 1-F-3.) A Deed of Distribution will not be approved for recording until at least 70 days after the Notice was served on the Commissioner.
In the alternative, Distribution may be made within the 70 day period after service of notice on the Commissioner with a Consent to Distribution obtained from the County representative of the Commissioner.
Recovery of assistance
Hennepin County

20. Typical Formal
Petition filed within 3 years of death; publication and notice to interested parties
Order admitting Will to probate, Appointing PR, Determination of heirs, description of homestead
Supervised: Decree or PR Deed pursuant to Orders
Unsupervised: PR Deed of Sale or Distribution
Commissioner Notice or Consent if Distribution
Hennepin County

21. Specific devise issues
May need a court finding via Registrar’s Determination of heirs or Order in a Formal proceeding to interpret the specific devise
Deed or Distribution may not match the specific devise. Title vests in specific devisee upon death of testator
I leave my homestead to my eldest child, if he survives me, or to my remaining children in equal shares.
Homestead: Legal could be in a Registrar’s Statement or Court Order (formal)
Eldest child could be in a Registrar’s Statement or Court Order
Whether eldest survived, likewise. If predeceased or did not survive by 120 hours, RS or Order as to identify of remaining children.
If a remaining child predeceased the testator, does her share go to her children or to the siblings?
Tip: An affidavit is not an acceptable alternative to a probate court determination.
Hennepin County

22. PR issues
PR sells the property to self; Voidable by any person interested in the estate; who has not consented, unless the will expressly authorized it, or approved by court after notice to interested persons. (creditors and commissioner and heirs)
Letters are to Mary Smith. PR deed is signed Mary Parsons, formerly known as Mary Smith. Need new Letters.
No one has started probate; Creditor can apply to be the PR
Hennepin County

23. Omitted property
Typical example: Assumed, incorrectly, that Mom and Dad were joint tenants
Did not include the property in estate of first to die (Mom)
Dad passes away, discover error
Decree of Descent more than 3 years since death and no will had been probated, nor proceedings had in this state; any interested party may be the petitioner
Reopen the probate
Hennepin County

24. Probate Documents needed
Intestate: Letters of General Administration
Testate: Will, Letters, Order or Registrar’s Statement that Will is admitted to probate
Letters: Certification shows Personal Rep authority is in effect (not replaced or revoked); Caution: If informal, PR cannot convey until 30 days since issuance of Letters
Some courts issue a probate “package” as one document; record as one document
Notice to Commissioner or Consent, for a Distribution
Examiner certification (508.69) should tell you what documents to file and to whom a new Certificate of Title issues
Hennepin County

25. Probate 31% rejected (5 mo. Period)
Hennepin County

26. Probate information for the general public and attorneys
Court website
Go to: Help Topics: Probate
Guide to Informal Probate
Some Forms
No guidance on how to convey or distribute real estate
Hennepin County

27. Marriage Dissolution
Until 1973, a proceedings subsequent was required after the divorce was final
requires examiner certification if the Decree or SREDJ is used to transfer title
Decree plus a Deed; no certification is needed
Spouses have a marital interest in each other’s real property
Petition and Decree must address the real estate and award it, no matter how it is titled, or when it was acquired
Hennepin County

28. Divorce % rejected
Hennepin County

29. Did both spouses know the property is at issue in the divorce? No if…
Property described as homestead or by street address;
Property is awarded in the Decree but not mentioned in the Petition, and it’s a default;
Service was by publication and Summons did not contain the legal description, and it’s a default;
Jurisdiction
If service of process is not valid, the court has no jurisdiction
Out of state court cannot award real property
Title Standard No. 84 and White pages I-B-2 provide guidance
Hennepin County

30. Speaker contact information
Susan Ledray, Examiner of Titles, Hennepin County Office phone: Direct:
Hennepin County