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Estate Planning: New law complicates document recording
Estate planning

Estate Planning: New law complicates document recording


Recently there was a change to Indiana law which affects how documents are recorded at the county recorder’s office. The change adds another hoop to jump through to record documents such as deeds.

As most of you know, to record a deed to transfer title to property, the grantor signs the deed before a Notary Public acknowledging that the deed has been signed. Easy peasy.

Now, what some of you may not know is that there was actually another option all along.

The statute stated that deed could be acknowledged before a notary, or proved under what most people would call common law. In other words, the statute allowed the signatory to acknowledge the execution or prove it before a disinterested witness.

I’m guessing that this was an option in times past due to a lack of access to a notary. Since you can’t throw a rock without hitting a Notary Public these days, everyone uses the notary option and the witness option was forgotten.

This is where the change comes in. Effective July 1, 2020, the word “or” was changed to “and.” A small but important change.

The change of that single word has led to a change as to how we execute deeds. Now, in addition to the acknowledgement, the grantor has to sign before a witness. In effect, the deed has to be notarized by a Notary Public and witnessed by a third party, who’s signature also needs to be notarized. If the deed isn’t executed in this new way, it likely won’t be recorded.

I’m not sure what the legislature had in mind with this change, but it has stressed out attorneys. For about two weeks, all probate and real estate attorneys wanted to talk about on the list servers was the effect this change will have. Seriously, I haven’t seen attorneys this excited since they did away with the inheritance tax.

What you need to know is that deeds now need to be acknowledged before a Notary Public and a disinterested witness and the witness’ signature also needs to be notarized. Deeds are getting ridiculously long.

Finally, although I’ve been writing about deeds, the new execution section also applies to things like mortgages, affidavits and other documents presented for recording.

From what I’ve read, lawmakers are working on a fix, but until the law is changed, get ready for additional complications when signing recordable instruments.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.


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