Child with power of attorney attempts to transfer ill father’s home into a living trust

Q: I am trying to help my dad transfer his home into a living trust. He will maintain the home as his primary residence. We want to put the home into a living trust to avoid probate after his death, and this is what was suggested to us. He’s recently taken ill, hopefully not a long-term thing, and is having difficulty leaving the house.

I would like to sign the deed of conveyance using my durable power of attorney. I went to our bank today and they told me that they needed my dad to come in and sign the document in person, but he can’t physically do that.

My sister and I have full powers of attorney for health care and financial matters. We should be able to make these necessary moves.

How do I word the document and the signature line to reflect the act under the power of attorney? Do I add my name to the signature line and the declaration where the notary signs to say I was there in person instead of him? It seems to be defeating the purpose of the durable power of attorney if I can’t sign the document for him. Do you have any suggestions?

A: We understand why your bank was hesitant to assist you with the documentation. For one, they are not attorneys that should assist in filling out the document for you. Secondly, they would likely not want to get involved if a child was trying to do something that would undermine a parent’s wishes, especially when they know he’s alive.

One option is to look for a notary service that can come to your dad’s home. The notary can witness your dad sign the document and then notarize it.

This also occurred to us: You’re trying to do this on your own, and we wonder if you shouldn’t hire a real estate attorney, an estate attorney or a settlement agent to assist you in transferring ownership of your dad’s home into a living trust. Do you have a living trust prepared and signed by your father? If not, you can’t transfer the home into a living trust that does not exist.

If you do have a living trust prepared and signed by your dad, have you contacted the attorney that drafted the living trust for your dad? That attorney may be able to assist you in getting the deed not only signed and notarized, but also recorded or filed in the government office that handles the recording or filing of real estate documents.

You want to get it done right. Which makes sense. While these processes aren’t that complicated, they are easily messed up by having documents prepared or recorded incorrectly, or not recorded at all. If a mistake is made, everything will unravel for you at the worst possible moment.

Here’s what you do to convey your father’s home into his living trust. Assuming the trust is drafted and signed by your dad, you’ll need to prepare a deed that conveys the home from your dad’s name into the name of the living trust. The document would have your dad’s information as the grantor along with his living trust information as the grantee for the property. The deed must also contain the legal description for the home, the post office address for the home, the tax parcel identification number, the name of the person that prepared the deed, and the address where the deed must be sent after it is recorded or filed. Finally, the deed must be signed by your dad and his signature must be witnessed.

If you were to sign the deed under the power of attorney, you’d first sign your dad’s name followed by your signature and the words “as attorney in fact” or other language as may be required in your state. Finally, the original power of attorney may need to be recorded or filed with the deed to show that the person signing the document actually had authority to sign it.

We hope this information helps you, and we encourage you to find someone to assist you with the process. Thanks for your question.

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(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, a financial wellness technology company. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)