Do I need a lawyerIn the vast majority of instances, real estate sales and purchases go smoothly for the buyer and seller of realty.

Real Estate is a tightly regulated industry in most states. Indiana has a system that runs pretty smooth most of the time and in the Lake County region, most real estate deals are handled without incident. Real Estate brokers and agents have some pretty stringent training that they have to go through, so an experienced agent or broker is going to know the ins and outs of the procedural end of real estate transactions.


However, the difference between an agent selling real estate and a lawyer is that the attorney is trained to spot legal issues that can spell the difference between your quiet enjoyment of your purchase and a legal nightmare waiting to happen.

A case in point. Buyer purchases a lot in a subdivision. The intent was to move his manufactured home onto the lot. After the deal, the Buyer moved the home onto the lot. Homeowners in the subdivision sued him, arguing that there was a restrictive covenant that stated “no structure shall be moved onto any of the said lots.” He coSad buyer of real estateuld only “build” a new structure.

The homeowners won. The court held that the negative, or restrictive covenants are not generally favored by the law, nevertheless, they can be enforced.

An attorney at the real estate closing would have demanded to see what, if any, covenants ran with the land and then made sure a definitive understanding of the covenant was rendered. If necessary, the lawyer would have insisted, to his client, that before he completes the transaction, that he obtain a release from every homeowner.

There are a myriad of instances where a buyer of real estate can get “bitten.” Many of them are obvious. Many are not.
The realtor’s job, unless she actually represents the Buyer, is not hired to “protect” the Buyer. She or he is not a lawyer and has no legal obligation to look after the Buyer’s best interests. Real Estate agents often do look after the best interests of a Buyer, but typically it is to insure that all the proper procedures are followed, things are signed correctly and timely, and other general things. She will often advise a Buyer of the obligations under the Agreement, but technically, the Real Estate agent is not bound to advise a Buyer as to the legal aspects of an agreement.

Questions that may typically arise in the attorney’s mind are: Are there any written covenants that run with the land? Are there any prescriptive easements? Was there a prior use of the realty that would give rise to a potential claim by the government, later? Does the owner have good title?

These, and many other such questions are often running through the lawyer’s mind when representing a client in a real estate transaction.

I  once had a client who’d bought a house on a land contract. I was not involved in that transaction. After 10 years of paying on the contract, they ran into some financial difficulties and as a result, the Seller brought an action against them to foreclose. I entered the case and the other attorney and I agreed that the easy way to solve this case would be for my clients to simply obtain a new mortgage from a conventional lender and pay the Seller monies he was due.

search real estate titleAt closing, I began reviewing the closing documents, including the title work (which I usually am able to get and review days before the real estate closing). Imagine my shock when I discovered that the Seller did not own the property!  I remarked to the other attorney that we would not be closing today. He bristled a bit and demanded to know why. When I informed him that his client did not own the property, he was shocked.

Apparently, the property was owned by two spinster sisters in southern Indiana. They both passed and had long before, told their nephew that they wanted him to own the property when they died. No estate was ever opened.  We eventually closed the case and got everything resolved, but it was an item that had been overlooked at the first closing and the second closing as well.


There are some instances where you absolutely need a lawyer for a real estate deal. Here is a list of at least 5 instances when you should absolutely consult with an attorney (not an exhaustive list):

  • 1. Get a real estate attorney for any sale of realty by contract or if you’re going to do a “Sale by Owner.” There are multiple issues that arise and things that the average buyer and seller of real estate is not going to know.
  • 2. Use a lawyer where you’re buying into a subdivision where there are covenants and/or there is an association. Nightmares can await you if you get into a subdivision with an association and covenants that are so restrictive that you lose the pleasure of enjoying your property.
  • 3. An attorney is always advised where you’re buying or selling and the land is in a Trust. Complications can exist that you really need to know about.
  • 4. Use of a real estate attorney is critical where you’re buying a business property. Don’t assume that all will go well and that this is a “straight-forward deal.”
  • 5. An experienced real estate lawyer will be worth his weight in gold to you if you are purchasing a property that is a part of ongoing litigation (such as a divorce proceeding).


Whether you are a Buyer of real estate or a Seller, you should seriously consider getting an attorney involved. In Lake County, Indiana, there are many fine realtors and agents who do a good job. But, in the end it is the lawyer who will represent you and only your best interests in a real estate deal. The realtors have somewhat of a conflicting interest. They want to sell that property and by selling it, they get paid handsomely. There’s nothing wrong with that. But, will every realtor and agent overlook the desire to sell if they point out an issue that could “kill the deal?”While they are under a legal and ethical obligation to point out many things, they are not obligated to act as your attorney and advise you of legal matters.

Perhaps more to the point, will they even look for or discover the issue that could hinder your enjoyment of your home? And, do they even have a legal duty to point out some legal issues that might exist? I do not believe they do, in most instances.

It is ultimately, your choice  as to whether or not you choose a lawyer to represent you in the sale or purchase of a home. But, consider that it may be an investment that risk at real estate closingcould save you thousands of dollars in the end, and could save you dozens of hours of anguish, grief and condemning yourself for being taken because of your ignorance of something.

Sometimes, it just isn’t worth taking a chance.


Here is some good information on the HUD Closing Statement

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Explanation of a Living Trust

Let’s say you own a diamond ring, a house, a cat, furniture, and a bank account with $20,000.00. At law, there are 2 elements of ownership. There is the legal ownership and there is the beneficial ownership of any property (a “property” here means personal property and real estate). In this case, you have legal and beneficial ownership of those properties. However, if you create a Trust and place all that property into the Trust, you divide those two elements. The Trust now has legal ownership and whoever you named as “beneficiary” has the beneficial ownership of those properties. If you named yourself as beneficiary, it means that you no longer own the property legally, but you have reserved the right to use the property for your own benefit. So, when you pass on, then you no longer own any of those properties and thus, there is no need to open an estate in Probate Court.

The Essential Duties of a Trustee

In the state of Indiana, and indeed, in every state, there are statutes (laws) in place dealing with the duties and responsibilities of a Trustee. Essentially, a Trustee is a person who is entrusted as a fiduciary (someone who controls the financial assets in the Trust for the beneficiary of the Trust). See Ind. Code § 30-4-3-6(a). & (b).  A Trustee is the person or persons appointed by the Grantor (the one who created the Living Trust) to be responsible for the possession, care and distribution of the assets within the Trust consistent with the terms of the Living Trust. Sometimes, Grantors want a bank or other such entity to be the Trustee, which is permitted in Indiana.

Basically, a Trustee of the average Living Trust (sometimes called a “Loving Trust”) will have to pay the bills of the Beneficiary or Beneficiaries named in the Trust, perhaps file income taxes, and at some point, close out the Trust when all the assets have been distributed.

A typical Trust will involve a husband and wife who create a Living Trust. They are called the Grantors. They will almost always be the Beneficiaries as well. In addition, it is not uncommon for them to also be the Trustees. Sometimes, only one of them will be the Trustee with the other one named as a Successor Trustee. And, it is common for the children to be named as Successor Trustees. They are often selected in order of age, but it may be in order of the closest in location to the Grantors. It is possible to select all the children to serve as Co-Trustees, or for two of them, but it is more common for one to serve and the others to serve as Successor Trustees.

The Essential Powers of a Trustee

A Trustee has the power to do whatever the Trust instrument allows. In addition, Indiana Code gives 27 different powers to a Trustee (See IC § 30-4-4-3). Realize that the duties and the powers of a Trustee can be reduced or expanded beyond the statutory limits. For example, a Trust Instrument may specifically “hold harmless” a Trustee for his or her investments of the Trust assets. That would mean that even if a Trustee was less than prudent, even reckless, there may be no violation of the statutory duty of the Trustee. But, even a “hold harmless” clause might not excuse the Trustee in all circumstances, so the wiser course of a Trustee is to follow the “prudent investor” rule.

The Practical Aspects of Being a Trustee

In practical terms, here is what an average Trustee might expect to do if she is selected as a Trustee, or a Successor Trustee.

  • 1. Sit down and read the Trust instrument. It probably would be wise for you to meet with the attorney who drafted the instrument and go over it with the lawyer to understand it.
  • 2. Ascertain what assets you are responsible for holding, investing and/or dispersing.
  • 3. Take control over the financial accounts. You’re going to need to show the bank the Trust document and, if you are a Successor Trustee, you’re going to need to show them why you are now the Trustee. If the Grantors have deceased, you’ll need to show the bank or financial institution, the death certificates. If you have become a Trustee because of the ill health of the former Trustee, perhaps the surviving Grantor, then you’re going to have to explain to the satisfaction of the financial institution, why you are now the Trustee. This may require a letter from a doctor indicating the incapacity of the Trustee. Sometimes, all that is necessary is a statement from the Trustee that he or she is surrendering the role of Trustee and appointing you as the new Trustee. See a lawyer to prepare a document to accomplish that.

There may be other things that need to be done. You may have to sell the real estate. At some point, if the Grantors become deceased or if they can no longer live in the home (and there are no issues regarding Medicaid), then you’ll have to liquidate the estate. In short, you’ll need to convert all the assets into cash. This might require you to contact a realtor, or a stock broker, or an insurance agent, or other professionals, including an attorney or an accountant.

All in all, a Trustee is a demanding job. It isn’t a role you should take on unless you understand that you have certain responsibilities that are imposed upon you by law. Sometimes, you have to do things in a timely fashion. If you ignore some timelines, you could cost your beneficiaries money, which means you could ultimately be responsible for the losses. The role of a fiduciary means you have a duty to the beneficiaries of the Trust to act in a responsible fashion with regard to protecting and investing the assets of the Trust.

For an expanded understanding of what the duties and powers of a Trustee of an Indiana Living Trust is, contact an Indiana lawyer experienced at drafting Estate documents, including Living Trusts.

For more information, see the following resourcces:


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