Senior Associate
When a loved one passes away, life changes dramatically for those who are left behind to grieve. An added challenge is ensuring that the estate is properly settled during the probate process. Selling the decedent’s house or other real property may be a necessary step to ensure that estate assets are properly distributed. But selling a house during probate is unlike selling one at any other time, and carries its own unique legal hurdles. Let the experienced estate planning attorneys of LaFountain & Wollman P.C. guide you.
The Basics of Probate
When a person leaves a last will and testament behind, the will has to be validated before estate assets can be distributed to heirs. This is accomplished through a court-supervised process known as probate. Among the steps are:
- Creating an inventory of estate property
- Taking steps to prevent the assets from being stolen or damaged
- Appraising estate property
- Paying estate debts and taxes
- Distributing the remaining assets according to the will
The process is roughly similar for those who die without a will (known as dying intestate).
Why Would a House Have To Be Sold During Probate?
Selling a house during probate might seem like an ordeal, but it could be necessary to settle the estate. There could be significant outstanding debts and taxes that have to be paid, and a quick sale could net sufficient proceeds to handle these obligations. To ensure that heirs receive their distributions as stipulated in the will, the house might also have to be sold. The beneficiaries may also decide that the maintenance and upkeep on the house is too much and would be a drain on their inheritances or the estate itself.
Regardless of the reasons that necessitate the sale of the house, doing so will have important legal implications for everyone involved. It’s strongly recommended that you consult an estate planning attorney before listing the house on the market.
How Could Probate Affect the Sale of the House?
Selling a house requires approval of the probate court, sometimes referred to as a License to Sell. The estate’s personal representative, also known as the executor, will be responsible for managing the sale (among other duties). While the house will need to be listed and offers to buy will have to be reviewed for consideration, the judge must grant final approval before the sale can be completed.
There are two main reasons for the court’s involvement. First, the judge will want to ensure that the house sells for a fair price, which prevents the personal representative from executing a sale that would decrease the value of the estate’s assets. Second, the judge will work to carry out the decedent’s wishes in accordance with state law. That includes accomplishing the distributions that were memorialized in the last will and testament.
Completing the sale could be more complicated than a standard real estate transaction due to the ongoing probate process. Buyers may be reluctant to buy if they believe the probate judge could delay the deal. The judge could even step in and mandate changes to the terms of the sale, another possibility that may give potential buyers pause. Having an experienced estate planning attorney will assist with the transaction.
How We Help With the Sale
We work with personal representatives to ensure the estate is settled according to the decedent’s will and probate law. That often includes facilitating the sale of houses or other real property. More specifically, our legal team can help executors:
- Understand and carry out their fiduciary duties
- Follow all required court procedures and rules when selling estate property
- Prepare and file all necessary probate papers with the court
- Inform potential buyers and real estate professionals of how probate will affect the sale
- Work for the most optimal outcome for the estate and all beneficiaries
Counseling You For All Estate Planning Matters
If you are a personal representative and need assistance probating an estate, we are ready to work with you. We can also help you plan for your own estate and potentially avoid probate by using trusts and other methods. That’s the level of comprehensive service you can count on from LaFountain & Wollman P.C. Call us today to get started.