QUESTION
Can we sell a property without going through probate if my brother and I agree?
Asked on Oct 18th, 2016 on Estate Planning - Oregon
More details to this question:
Our mother owned 3 homes, 2 are going through foreclosure, and one was paid in full. Can we sell this home without going through probate, or will the consequences be bad? We were offered $60,000 yet I know our mother had debt, and no probate has been started. I'm weary about doing anything because we don't have the money to maintain property taxes, yard etc.
15 ANSWERS
Civil Litigation Attorney serving Ventura, CA
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The Law Office of Robert I. Long
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In California there is an Affidavit or Declaration procedure available for a much-simplified probate procedure if the assets that don't pass automatically as joint tenancy property total less than $150,000.00. You may have to wait for the foreclosures to be completed in order to meet that threshold. You will also need an Inventory and Appraisal of the property by a Probate Referee. All Successors in Interest would need to join in the Petition. The procedure is not available to effect a transfer of the property, so it would need to be done in two steps, first getting the property into the names of the Successors in Interest (the people named in the Will to receive it or, if no Will, the heirs of the decedent) and only after that would the Successors be able to complete a sale to third persons. There is no publication of notice required, so creditors are less likely to learn of the procedure. There is also an affidavit procedure which avoids court altogether as well as not requiring an Inventory, but that procedure is only available if the gross value of the real property does not exceed $50,000.00. There is no other way to effectively transfer property of a deceased person which avoids probate. Your signatures on a deed would be invalid to transfer title.
Answered on Nov 18th, 2016 at 4:44 AM
Corporate/Business Attorney serving Beachwood, OH
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Christine Sabio Socrates Attorney at Law
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The answer depends on whose name is on title to the properties. If they are in your mother's name alone and there is not a transfer on death designation or deed, then the properties will need to pass through probate. The heirs will not be responsible for her debts if they are hers alone. If you work with a probate attorney, that attorney can assist in sorting through the mess and try to work with creditors to preserve some of the estate if possible. If you would like assistance, I would be happy to speak with you further.
Answered on Nov 14th, 2016 at 5:19 AM
The problem with selling the home is that no one has the legal authority to do that. Your mother is deceased and only the owner can pass on the deed. Talk with a probate attorney in your area and see if there is a way to get a grant from the court to see the house specifically to pay off your mother?s outstanding debts.
Answered on Nov 10th, 2016 at 4:53 PM
Personal Injury Attorney serving Greenville, SC
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The Greene Law Firm, P.A.
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No, you cannot sell real property in South Carolina when the owner is deceased without going through probate. At the end of the probate, a deed of distribution will be issued to the proper heirs transferring the property out of the estate to you.
Answered on Nov 10th, 2016 at 8:19 AM
Probate will be necessary.
Answered on Nov 10th, 2016 at 8:19 AM
Trusts and Estates Attorney serving Troy, MI
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Barron, Rosenberg, Mayoras & Mayoras, P.C.
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Unfortunately, if an asset or real estate is in a persons name without a beneficiary, joint owner or not in a trust, the only way title can pass from the deceased person to heirs are by obtaining letters of authority from the probate court. It is not a difficult process and not thousands and thousands of dollars. Authority can happen fairly quickly, but you do have to notify creditors. I have a similar circumstance right now where the homes were turned into the bank by a deed in lieu of foreclosure and the bank wiped out the deficiency. The other property was sold through probate and the family received the money.
Answered on Nov 10th, 2016 at 4:47 AM
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If title is in your mother's name the answer is "no." I urge you to speak with a probate lawyer to assist you opening the estate and processing the probate. Best of luck to you. This is opinion is solely based upon the facts presented in the inquiry. Additional facts may be important and may change the analysis. If you are uncertain, seek legal counsel. We are not your attorneys. This answer is being offered to assist you in determining if you need to retain legal counsel to assist you, not to resolve your issue through an email inquiry.
Answered on Nov 10th, 2016 at 4:47 AM
Commercial & Bankruptcy Law Attorney serving Powell, OH
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Ronald K. Nims
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Okay, let's get to basic real estate law. Unlike a table or an ice cream cone - where possession pretty much equals ownership - real estate has a title. That deed that gave your mother the title is on record at the county recorder's office. In order to sell that real estate, your mother has to sign a new deed transferring the title to the buyer. Since your mother is deceased, the buyer might express a certain skepticism about her signature on a new deed (buyers are suspicious types - particularly when they are paying thousands of dollars for real estate - not so much when paying thousands of dollars to former presidents of the Nigerian Central Bank). The probate court can enter an order which transfers title from the deceased to the new owner. And gives her creditors a shot at collecting her debts. So, can you try to transfer the real estate if both your brother and you agree? Yes, it would be forgery and fraud, you'll both probably come out with a criminal record ?(if either of you have any issues with that "three strikes and life in prison" law, now would be a good time to talk to your probation officer) but you can try.
Answered on Nov 10th, 2016 at 4:46 AM
How are you going to transfer title to the property unless you go through a small estate probate? Who would buy the property without getting proper title [it is in your mothers name]. Of course, if you go through probate you will have to notify her creditors and they may take much of the $60,000.
Answered on Nov 09th, 2016 at 5:25 PM
Thomas Edward Gates
No, you cannot sell the home without going through probate. Without being appointed by the court as personal representative, you cannot sell the home unless you are on the title. Further, the home assets may be needed to pay creditors. They would need to be satisfied before any distribution to beneficiaries.
Answered on Nov 09th, 2016 at 5:25 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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You would have to go through probate to sell any property titled in your mother's name.
Answered on Nov 09th, 2016 at 5:25 PM
Estate Planning Attorney serving La Grange, IL
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Law Office of T. Phillip Boggess
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I find it will be highly unlikely that you will be able to sell it. The title company is going to want to know who the proper person is to sign the deed and guarantee the transfer of title to the buyer. You should be able to get the probate estate open within a few weeks. Unless the buyer is really anxious, I would assume they could wait a few weeks before having closing (or starting the sale process if the buyer is taking a loan).
Answered on Nov 09th, 2016 at 5:25 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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If your mother has any debts, creditors or claims against her assets then a probate should be opened to provide a mechanism for the sale of her assets and payment to creditors. The creditors must be notified of the opening of the estate and the creditors would then have 6 months to file claims against the estate. Meanwhile the property can be sold and the assets held. If a creditor files a claim and proves the claim then the estate assets would be used to pay the claims. If the claims period passes and funds remain in the estate the funds can be distributed to the heirs. If you sell the property without opening a probate estate then the creditors could seek any distribution of estate assets to the heirs in a law suit against the heirs as individuals. You may be able to sell the property without opening a probate by inducing a title insurance company to insure over the defect in title. To do that you and you brother would have to tell the title insurance company that you are the sole heirs and that your mother had no debts or obligation and would indemnify the title insurance company against any loss that arose because of a debt or obligation. Since you know of debts you cannot do this.
Answered on Nov 09th, 2016 at 5:24 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If you do anything at all with the property, her debts will have to be paid. The best and safest way to do this is through a probate proceeding. However, you should first determine whether your mother's debts exceed the equity in the home; if yes, it may not make sense to do anything at all. The costs of probate (including attorney fees please don't try this without the aid of an experience probate lawyer) come out of the estate prior to debts. Do the math and talk to a probate lawyer and you'll be fine.
Answered on Nov 09th, 2016 at 5:24 PM
It is possible to sell the property without going through probate. It has to done through a title company and they have rules about when they will do it. There has to be no will and you have to be only heirs of your mother.
Answered on Nov 09th, 2016 at 5:24 PM