Question about deed of trust (appointed, real estate, attorney)

[notsure7]

With this information below, if the wife is on the deed of trust and not on the deed and the husband on the deed disappears, can the wife sell the house? I understand she has marital interest, does she do a quit claim deed to her interest in order to selll the property?


The definition of marital property is found in section 50-20(b)(1) of the North Carolina General Statutes -- all real and personal property acquired by either spouse during the course of the marriage and before the date of separation, and "presently owned," except property determined to be separate property in accordance with the statute. The statutory definition of marital property now contains a presumption that all property acquired after the date of marriage and before separation is marital (except separate property by definition); the presumption is rebuttable by a preponderance of the evidence. This presumption changed prior case law.
The definition of separate property is found in section 50-20(b)(2) of the North Carolina General Statutes -- all real and personal property acquired before marriage, or property acquired during the marriage by bequest, devise, descent or gift. Professional and business licenses which would terminate on transfer are expressly defined to be separate property, as is any increase in value to separate property and income derived from such property. However, the increase in value that remains separate is passive appreciation only, such as by inflation, market forces, third-party effort, or government action. Increases in value attributable to the marital unit, i.e., active appreciation resulting from the personal, financial or managerial contributions of one or both spouses, is marital.
G.S. 50-20(b)(2) has two special provisos, the so-called spousal gift provision and the exchange provision. Property exchanged for separate property remains separate, regardless of how titled, "and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance." Property acquired as a gift from one spouse is, on the other hand, separate "only if such an intention is stated in the conveyance." These provisions have been interpreted to mean that where separate property is used in the acquisition of real property that is put into tenancy by the entireties, there is a presumed gift of the separate property to the marital estate, said presumption rebuttable only by clear, cogent and

[FauxPas]

True NC story:
My girlfriend bought a house in 1988. We married in 1997. She died suddenly, childless and without a will, 5 years later.
Per NC I inherited 1/2 of our house, and her parents the other half. Had she had a child by another marriage, the child would have inherited half, me half, and parents nothing.
I bought out the inlaws' share and solved the problem, but a $15 internet will would have saved a lot of aggravation. Might solve the OP's problem as well.
And btw, even tho I now own the house free and clear, my name will never be recorded on the deed, unless I sell it to someone and then buy it back.

[MikeJaquish]

Originally Posted by notsure7

With this information below, if the wife is on the deed of trust and not on the deed and the husband on the deed disappears, can the wife sell the house? I understand she has marital interest, does she do a quit claim deed to her interest in order to selll the property?


The definition of marital property is found in section 50-20(b)(1) of the North Carolina General Statutes -- all real and personal property acquired by either spouse during the course of the marriage and before the date of separation, and "presently owned," except property determined to be separate property in accordance with the statute. The statutory definition of marital property now contains a presumption that all property acquired after the date of marriage and before separation is marital (except separate property by definition); the presumption is rebuttable by a preponderance of the evidence. This presumption changed prior case law.
The definition of separate property is found in section 50-20(b)(2) of the North Carolina General Statutes -- all real and personal property acquired before marriage, or property acquired during the marriage by bequest, devise, descent or gift. Professional and business licenses which would terminate on transfer are expressly defined to be separate property, as is any increase in value to separate property and income derived from such property. However, the increase in value that remains separate is passive appreciation only, such as by inflation, market forces, third-party effort, or government action. Increases in value attributable to the marital unit, i.e., active appreciation resulting from the personal, financial or managerial contributions of one or both spouses, is marital.
G.S. 50-20(b)(2) has two special provisos, the so-called spousal gift provision and the exchange provision. Property exchanged for separate property remains separate, regardless of how titled, "and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance." Property acquired as a gift from one spouse is, on the other hand, separate "only if such an intention is stated in the conveyance." These provisions have been interpreted to mean that where separate property is used in the acquisition of real property that is put into tenancy by the entireties, there is a presumed gift of the separate property to the marital estate, said presumption rebuttable only by clear, cogent and

You need a good real estate attorney. No one here will want to mislead you, but just cannot give you good legal counsel.

[cwilms0309]

What do you mean disappear? I think that makes a difference.

[kev5778]

Originally Posted by cwilms0309

What do you mean disappear? I think that makes a difference.

Yes, that absolutely makes a difference. The situation with the husband is not very clear. In order to sell a property, traditionally, the seller's name has to appear on the recorded deed/Warranty Deed. If her name is nowhere on that recorded document, then the husband needs to quit claim his interest of the property over to her or get her added onto the Warranty Deed, so that her interest of the property is filed on county record, in order for her to be able to sell the property. If both their names are on the deed, then both would have to sign in order to agree to sell the property. If she wants sole interest to be able to do as she wishes, then he needs to agree to quit claim the property over to her by having a QuitClaim Deed signed by him, notarized by an attorney, and recorded on county record.

The order of precedence between a person who has died and one who has disappeared is a little different. For someone who has died, the administrator or executor of the estate would be first, followed by the surviving spouse, then surviving sons and daughters, including adopted children, then surviving father and mother, then surviving brothers and sisters, and finally, heirs of the deceased person who would be entitled according to State law. For someone who has disappeared, the conservator or liquidator of the estate, if one has been appointed, would be first, followed by spouse, then adult son, daughter, or grandchild for the benefit of the estate, then mother or father for the benefit of the estate, then adult brother or sister for the benefit of the estate, and finally, person authorized under State law for the benefit of the estate.

As has been mentioned, the best thing to do is to receive a consultation from a real estate attorney to ensure all your bases are covered and that everything is done according to State law. An attorney will most likely require a filed affidavit be executed showing that the disappeared person has been missing more than 3 months, that a diligent search has failed to reveal the person's whereabouts, and that the person has not communicated during the 3 month period with other persons who would have expected to hear from the missing person.