By: Merideth Nagel, Esq.
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Buying or Selling Property in Probate
One of the most frequent questions we receive here in regards to probate is, “if someone holds power of attorney for someone that has passed away, is that enough to list and sell the house?” The answer to this, unfortunately, is no.
A power of attorney does, generally, give whoever holds that power (called “the agent” in law) the right to sell property on behalf of the person they’re representing but that power of attorney expires when the person dies.For instance, if you have a power of attorney to conduct your parents’ business on their behalf and they die, that power of attorney does not allow you to sell their home. So, if the power of attorney doesn’t work, then what does work?
The next step is opening a probate.
Probate is just a fancy lawyer word to describe the court proceedings whereby a judge takes the will, reviews the will to ensure that it was properly signed and notarized, and dictates whether or not the instructions therein are in accordance with the deceased individual’s wishes. If a judge decides that a will does accurately dictate that a beneficiary receive property, they will be awarded the property and the home can then be sold after that process.
The problem is that it’s never as easy as presenting a document and having a judge slam the gavel. There are petitions that have to be filed, documents that must accompany these petitions, and you have to wait for the court to consider the petition and then provide a ruling on it. When the ruling comes out, you have to follow the terms of that ruling.
A probate, when necessary, will take a minimum of 60 to 90 days. Sometimes things can move more quickly but, unfortunately, no matter who you hire, a lawyer must do the probate. A person can’t do a probate themselves. When the lawyer is hired, it is important to remember that, no matter how quickly the lawyer works, they can’t control the judge’s schedule. Judges can go on vacation, cases can get backed up, they can be understaffed – judges face all the challenges that other government agency encounter. For that reason, no one can give you an exact estimate on how long it will take to get through the whole process.
If you’re going to list a house for a client and you learn that the owner on title has passed away, then know that the power of attorney is not going to work and that a probate will be required. When you speak with your clients about a probate, it’s always a good idea to tell them to speak to their attorney about whether they’re experienced in property transactions in addition to probate. This gives you some insight into whether or not the file will move along as quickly as possible and tells you if your closing may or may not be held up.
We don’t want you to be intimidated by probate, we want you to be educated and aware of what is going to be required. It’s not complicated, it’s just an additional waiting period. Just remember to set expectations from the beginning and communicate with both the lister and the buyer about how long the process might take.
If you have any questions for us in regards to listing or buying a property in probate, please don’t hesitate to reach out to us: (352) 241-8629.