Many & LoCoco Legal Blog

Wednesday, November 14, 2018

Judgment of Possession - Transferring Title after Death

Attorneys sometimes forget that certain legal matters which we consider hornbook and obvious, to our clients it is uncharted territory. One such question I often get, and one that I do my best to make sure to explain fully to all clients so they know the answer, regards the transfer of a home to the surviving spouse after the death of the other spouse. The best way to explain the mechanism of what happens is to use an example.

Bob and Mary Wayne have been married for 50 years. The year they were married, 1968, they bought a home on St. Charles Ave. They still had the original Act of Sale which they kept with all of their important papers. 

That Act of Sale is the Title to the property. That Act of Sale was recorded in the Land Records office of New Orleans back in 1968. (On a side note - that was back when the land records was kept in the basement of the Civil District Court building- not smart for a City below sea level. After Katrina - Land Records was moved across the street to the 4th and 5th floor of an office building.) I digress.

So any one who did a Title search would see that the home was purchased by Bob and Mary in 1968 and that they are the owners - 50% to each. The official acquisition would look like this. After a description of the property itself would come the acquisition. Being the same property acquired by Mary Wayne, wife of/and Bob Wayne from Sloan Builders by Act of Sale before Vincent LoCoco, Notary Public, on the 5th day of May, 1968 and recorded as COB 111 and folio 5777.

In 2018, Bob dies. Bob has a will and leaves his entire estate to his wife, Mary. His estate consists cash accounts and the home. A succession is done, will is probated, and Mary is placed in possession of the entire estate of Bob. A Judgment of Possession is issued by the Court recognizing same. In that judgment of possession, the legal description of the home would be listed and how it had been acquired by Bob and Mary. That Judgment would recognize Mary's own one-half interest in the home and place her in possession of Bob's one-half, thus making her the 100% owner.

That Judgment of Possession is then recorded in the Land Records and now becomes the new Title to the property.  

Successions, Probate, Estates - the entire purpose of this area of law is to transfer title of the deceased to their heirs so that the heirs have clear title to the property if ever they want to sell or mortgage the property. The official chain of title for this home now would look like this.

Being the same property acquired by Mary Wayne, wife of/and Bob Wayne from Sloan Builders by Act of Sale before Vincent LoCoco, Notary Public, on the 5th day of May, 1968 and recorded as COB 111 and folio 5777.

Being the same property further acquired by Mary Wayne by Judgment of Possession in the Succession of Bob Wayne, Civil District Court for the Parish of Orleans, State of Louisiana, Proceeding No. 2018-325557, and recorded in the Land Records of Orleans Parish on the 8th day of November, 2018 as COB 77777 folio 66666.

Years later, Mary wants to take out an equity line of credit. She calls her attorney and says what she intends to do, but that the Act of Sale has her husband's name on it. Can her attorney help her in removing his name. Of course, as you know, nothing needs to be done. The Judgment of Possession is the new title as we have seen. The title attorney for the mortgage company will do a title search and see the acquisitions and the clear title and will agree that Mary is the 100% owner of the home. 

So next time you hear - Judgment of Possession - you know what the purpose of it is and the impact of same. 

Chip LoCoco

(504) 483-2332


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