Judy was looking to move out of the city into the country and find a house with some land so she could garden and enjoy privacy she had not had during the time she had lived in the city. After some looking she found the perfect house. It belonged to a lady named Wanda, a widow with five children, who was selling this large family home to move to an assisted living center due to failing health. Judy hired an attorney to conduct a title examination, and an examination of the public records discovered the house had originally been titled in the husband’s name and that when he died his estate listed him as being survived by his wife, the widow, and their five children. At closing, Judy’s attorney had the widow, all five children and their spouses sign the deed.
Judy moved in and began enjoying the home and surrounding land. A couple of years later she heard the widow had passed away. A few months later a man showed up at the home and identified himself as one of Wanda’s children. When Judy told him she had bought the property from his mother and siblings, he was very surprised since the property had been in their family for generations and as the oldest child he had been promised the house and land.
A few days later Judy received another surprise, a letter in the mail from Wanda the widow’s son’s attorney advising Judy that her purchase was not valid since she had not obtained all the interests of the heirs. Wanda took the letter to her attorney to see what might be done about a situation that threatened to end her dream.
The attorney decided to recheck the public records to see how he could have missed an important heir’s interest. But all the public record disclosed was an administration sheet with the Clerk of Court that listed as the surviving heirs, the wife and five children. The attorney telephoned one of the children to ask about the missing heir that had shown up. Sure enough, he confessed that the five siblings had indeed had an older brother, but that they and their mother considered him to be the “Black Sheep” of the family and had disowned him when he left for California over 20 years ago. Since he was disowned, in their minds he had no right to inherit anything from their father’s intestate estate.
What, if anything, could Judy’s attorney have done to prevent this type of problem from occurring? An attorney has the right to rely upon the public records. However, as this fact situation shows, there are limits to what a diligent attorney may glean from the public records. To further protect the buyer/client, title insurance is available to eliminate some of the risks involved in a public search of the public records. One of the things the ALTA 2006 Owner’s Policy of title insurance provides coverage for is the failure to secure the interest of an heir.