Nuts and Bolts of Real Estate Filings in Minnesota for Estates and Trusts Professionals

/ October 14, 2015

House - iStockAs a freelance probate and estate planning legal assistant/paralegal (call me what you like) I work with a lot of real estate documents.  Most commonly I’m involved in preparing and recording…

  • Quit Claim Deeds transferring property into a trust;
  • Deeds of Distribution distributing property out of an estate;
  • Trustee’s Deeds (along with an accompanying Certificate of Trust and Affidavit of Trustee) transferring property out of a Trust;
  • Affidavits of Identity and Survivorship typically transferring property held in joint tenancy into the surviving joint tenant’s name alone (or to a beneficiary named in a recorded Transfer on Death Deed); and
  • Transfer on Death Deeds naming transfer on death beneficiaries for a specific piece of property.

Here are a few administrative tips and tricks that I’ve picked up along the way for successfully preparing and recording these documents in Minnesota:

Get the Legal Description Right

Since my first days of working in a law office, it has been thoroughly stamped into my being that you do not play around with legal descriptions.  That is, legal descriptions should be copied exactly, word for word, capital letter for capital letter, Arabic numeral 4 versus the English word four.  I have also always proofed legal descriptions with two people – one reads the text out loud, clearly stating each detail (for example, Block 5, Lot 4 would be read aloud as “capital Block numeral 5, capital Lot numeral 4…).  This all may sound a bit paranoid and superstitious.  But this extra five minutes might very well prevent mistakes that could someday haunt your client’s real estate title and your good name as a legal professional.

Get the Names Right

This might be more superstition, but in my experience, I always reference the names as written on the last recorded deed when preparing the transfer deed.  That is, if I am preparing a Quit Claim Deed transferring property into a client’s trust and the last filed deed lists the client’s name as John T. Doe, then I make the transfer from John T. Doe, not John Doe or John Timothy Doe or J. Doe.

Also, for transfers into or out of a trust, I always make sure that the trust name is correct.  That is, I always look at the trust document for the name of the trust.  If the trust document says it is to be called the John T. Doe Revocable Trust dated October 9, 1984, then that’s what I put in the transfer deed.  It’s not the John Timothy Doe Revocable Trust or any other variation on that theme.

Get a Copy of the Last Recorded Deed

Since getting the legal description and the names correct is so important, I always start with getting a plain copy of the last recorded deed for the property.

Sometimes when requesting the last filed deed, you will receive the last filed document, which may be a mortgage, rather than a deed.  I have more than once seen mistakes in the legal descriptions included on recorded mortgages.  So my rule is to go by the deed, not the mortgage.

Clients rarely have copies of deeds, so I typically use Old Republic Title’s ORBIT service to obtain copies of property records from the metro area and a number of surrounding counties.  You can become a registered user with ORBIT, but I just send requests via email to [email protected] requesting the last filed deed for the property.  The charge is $25 and well worth it.

You can also call a county recorder directly, ask them to look up the document and tell you how many pages it is, and then mail a request with payment (typically $1/page) along with a self-addressed stamped envelope.  I tend to estimate that my time cost to the client to do this is probably equal to or greater than the $25 that Old Republic charges.  Thus, I appreciate Old Republic’s fast and convenient service.  I’ve also had some counties tell me that they don’t do “research,” but will nevertheless take pity on me and tell me how much a document costs.

The Hennepin County Recorder does have an email address now ([email protected]).  I recently sent a request and they promptly responded with the cost of the document copy I needed.  I could then quickly spit out a form letter requesting the document and whoosh it out into the mail along with a check.  So this is definitely a good option for property in Hennepin County.

Verify: Is the Property Abstract or Torrens?

I once worked with a client who had a copy of the recorded Affidavit of Identity and Survivorship transferring her home out of joint tenancy with her husband into her name alone after her husband passed away a number of years earlier.  But when I called Hennepin County to get a copy of this Affidavit and the original Warranty Deed in order to prepare a deed transferring the home into the client’s Revocable Trust, there was no record of an Affidavit of Survivorship.  But she had the recorded document in hand.

What happened was that the client’s previous attorney had filed the Affidavit with the Abstract department, but the property was Torrens.  As a picture perfect example of bureaucracy, to remedy the situation, I went to the Abstract counter, purchased a certified copy of the Affidavit and walked it across the room to the Torrens department and recorded it properly.

Problem solved, but the moral of the story: verify whether the property is Abstract or Torrens.  For some counties you can look at the property tax records online to see whether the real estate is Abstract or Torrens.  If not, call the county and ask.  But don’t assume all property is Abstract.  It’s not and you will look dumb in front of your client if you don’t check.

Recording Documents: Probate Transfers

If you’ve done probate administration in Hennepin County, then you know about the “Real Estate Sales Package,” also known as the “Certified Sales Package.”  For the uninitiated, this is a certified copy of the Will, Order, and Letters Testamentary and currently costs $48.

My experience with probate transfers is that we always try to get the Sales Package certified on (or as near as possible) to the date shown on the Deed of Distribution in order to show that the Personal Representative unequivocally had the authority to transfer the property out of the estate.  I’ll let a lawyer (which I am not) tell you whether that is true or not, but administratively that is what I have always done.

The Sales Package is then recorded along with the Deed of Distribution. For Abstract property the deed and Sales Package can be filed directly with the county recorder.  For Torrens property, the deed and Sales Package will need to be approved by the Examiner of Titles before it can be recorded with the county’s Torrens department.  Hennepin used to have separate Abstract and Torrens departments, but now has one department.  These days, most counties in Minnesota will have one department that handles both Abstract and Torrens property.

Now here is an important detail: Since Hennepin County certifies these three documents together as one “Sales Package,” the one document can be recorded as one document.  So I will send the Deed of Distribution and the Sales Package for recording along with a check for $92 to cover two recording fees (two at $46, one for each document).

But Probate courts in other counties do not speak Hennepin County legalese.  In my early days, I called a probate court in another county and asked for a “Certified Sales Package” and they had no idea what I was asking for.  In all counties other than Hennepin, you will need to order individual certified copies of the Will, Order, and Letters Testamentary.  But since they are not certified as one document, when you go to record the documents you will need to pay a $46 recording fee for each certified document.  So make the check out for $184 (four at $46 each) rather than $92.  Outrage, I know.

To remedy this problem, I consulted with expert freelance probate and trust paralegal, Julie O’Brien.  She said that when she requests the three certified documents from counties other than Hennepin, she asks the probate court nicely if they will please certify the three documents together rather than separately, thus saving on recording costs when filing.  She added that sometimes this works, sometimes it doesn’t.  It’s worth a try.

Another sage piece of advice: I always scan all outgoing correspondence along with any attachments.  But don’t ever pull the staples out of a certified Sales Package to scan it before recording.  Once the staples are removed, it’s no longer certified and you’ll have to purchase another.

Probate Court Directory

I like to use MN CLE’s Probate Court Directory.  This includes helpful information (addresses, phone numbers, filing fees) for all the county probate courts and includes county recorder information as well (including addresses for recording documents and who to write the check to for the recording fees and deed tax).

Recording Checklist

Get a recording checklist and use it. They are basically the same for each county. Hennepin County’s checklist is available here. This will save you from making stupid mistakes like not including the marital status of the grantor or forgetting to add “Total consideration for this transfer is $500 or less” for transfers using the minimum deed tax (such as transfers into a client’s Trust).

If Deed Tax, then Conservation Fee, but only if…

I called a recorder’s office once and asked what the conservation fee was used for and the person who answered said, “Oh, it goes toward our lunch fund.”  We had a good laugh.  I don’t know where it goes, probably into the proverbial vending machine somewhere, but it is $5 and you have to include it for any transfer where you are paying deed tax. The Conservation Fee is only charged when recording documents in the following ten counties: Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, Waseca, Washington, Winona, and Wright​.  For all other counties, you will just pay the recording fee and any applicable deed tax.

So, for example, an Affidavit of Survivorship has no deed tax, so there is no Conservation Fee.  But a Quit Claim Deed to a trust does include a deed tax, so you will pay the conservation fee (but only if the property is in one of the counties listed above).

Minimum Deed Tax

Deed tax is calculated as a percentage of the purchase price of the real estate being transferred.  But when transferring property into a client’s trust, the “purchase price” is basically nothing.  So to calculate the deed tax, Minnesota has you calculate the minimum deed tax, which is the deed tax calculated for a purchase price of $500.  So 0.0033 of the “net consideration or purchase price” of $500 is 500*0.0033=$1.65.

But here’s a finer point:  Hennepin and Ramsey counties calculate the minimum deed tax as 0.0034 of the purchase price, putting the minimum deed tax at $1.70.  As far as I know, Hennepin and Ramsey are the only counties that do this.  So be sure you write your check for the correct amount.

And, of course, one more point of confusion.  Some counties will accept one check for the recording fee and the deed tax.  Others require separate checks.  In the latter case, typically you will write one check to the county recorder for the recording fees and another to the county treasurer for the deed tax.  This information is included in MN CLE’s Probate Court Directory mentioned above.  Another reason why this is such a handy reference.