Get a title search early.  When you decide you need to put your house on the market, early in the process you should have a preliminary title search performed to make sure there are no previously undiscovered defects of title.  Identifying the brokerage agent you will list with is extremely important; but it is equally important that you establish a relationship up front (if you don’t already have one) with the settlement agent who will ultimately prepare your deed for transfer. 

For maximum risk reduction, get representation.  Having your property marketed by a real estate broker, who will represent your interests only when negotiating the contract for you, is an important risk reduction strategy.  Hiring a real estate attorney, rather than a title insurance company, to handle your settlement can be equally important to a successful outcome. 

Title insurance companies do not represent you. Although I have deep respect for all of the title company professionals I know—they are an exceptionally hard working, intelligent, and informed group of people—the fact is, they do not and cannot represent your interests in a transaction, nor can they answer legal questions.  In fact, although the companies are typically owned by attorneys, the personnel assisting you at a title insurance company are constrained by law from giving legal advice.  They are often knowledgeable about the issues you are concerned with, but, by law, only an attorney at law is allowed to give you advice about legal matters, or represent you in a dispute.

The value of having an attorney involved in a real estate settlement.  In the context of a real estate settlement—where last-minute demands by the other party are commonplace, and in which time is of the essence—not having representation in place can be painful and costly.  If a dispute arises, it will be difficult, if not impossible, to find a lawyer to help you on a timely basis.  In contrast, having an attorney overseeing the entire process means having one available and in place to give you advice; and then on-hand to make that all-important phone call (often stopping the other party’s unreasonable demand in its tracks).  

Know where you stand.  In summary, (1) always hire an attorney to conduct your real estate settlement and (2) always make sure, if the party elects to have its part of the settlement taken care of by the same firm, that you are still being fully represented by a separate attorney.  You must clarify this last issue, as you should any other issue about representation. 

Remember, there are no stupid questions!  Ask questions early, and often. This is particularly true when you are involved in a real estate transaction.