Selling A Home Before Probating An Estate
Selling Homes or Real Estate Before Probate When Someone Dies
When someone passes away, the family or friends who seek to manage the estate often need to deal with real estate. When selling estate homes after death, the person in charge of the estate needs a grant of probate to sell the home. This takes time, but methods exist to speed up the process. The wills and estate lawyers at Kahane Law Office, regularly assist executors and real estate agents in the selling of the home. Failing to follow the proper steps, often leads to potential liability for the person selling the home. Keep reading to learn about the risks and procedures needed to sell a home when someone passes away quickly.
What Is Probate?
Probate refers to an application to the Surrogate Court. The application asks the court to grant an order stating which will is the last and final will of the deceased and whom the beneficiaries, executor(s), trustees, etc of an estate are. Until the court issues a grant of probate, no one has the right to speak for or act on behalf of an estate. When selling estate homes after death, unless ownership included a joint tenant, land titles only transfers title ownership with a grant of probate. Under normal circumstances, probating an estate takes 3-4 months.
Selling Estate Homes After Death When No Will
If a person owns real estate and passes away without a will, the person looking to sell the home, still needs court permission. When someone dies without a will, the legal term is that they die intestate. With an intestacy, the process is very similar to probate. However, the name of the process and the specific forms, while similar, are different. When selling estate homes after death, the same options, risks and procedures are in place with an intestacy. The legal term for the grant from the court with an intestacy is a letter of administration.
When Can You Sell A Home When Someone Dies
From a strict legal perspective, a home may only be sold when someone dies, after a grant of probate or letter of administration, has been granted by the court. As below, other options exist, with varying degrees of legal risk.
Why Do People Want to Sell A Home Before Probate
Generally, real estate (a person’s home) is the single largest asset in their estate. Further, executors have an obligation to protect the assets of the estate. This means that they need to keep insurance on what is usually a vacant home, need to maintain the home (shovel walks, keep pipes form freezing, etc). In addition, carrying costs, such as insurance, condo fees, mortgage(s), utilities, etc act as a burden to the estate. As such, executors want to sell the home as quickly as possible.
The Risks Of Selling A Home Before Probate
If a person sells the home of an estate before probate, they run certain risks. This potential liability often extends to real estate agents acting for the sale of the home. For example, the risks, which vary by situation, include:
- A new will comes to light with different beneficiaries, executors;
- The will gives the home to a specific person who wants the home, not the sale proceeds;
- A family law contract or dower rights, supersedes the will and someone else takes priority in terms of the home;
- One of the beneficiaries wants the home, and wishes to receive the home as their share of the estate; and lastly
- The person trying to sell the home, does not have the right to do so.
How To Sell A Home When Someone Dies Before Probate
Several options exist when selling estate homes after the owner dies. Significant risk may exist for the person selling the home for the estate. In addition, liability may exist for the real estate agent listing the home. It is important to speak to a wills and estates lawyer to understand these risks. Some of the risks of selling a home before probate are set out below. The amount of risk and types of risk vary greatly depending on the situation. In terms of options to sell a home before probate, the following, for example, are some.
Limited Grant Of Probate
A limited grant of probate, is a relatively new system. It is set up to deal with real estate when a person dies. As the name suggests, the grant is limited in that in only allows for the sale of the home. The estate then applies for the full grant of probate in order to distribute the proceeds from the sale of the home along with the rest of the estate.
Grant Of Probate Sellers Condition
One option is for the contract to be conditional on the court granting probate. When selling estate homes after death, the person selling the home before probate may include a condition in the contract. This condition states that the entire contract ceases to exist from a legal standpoint. To move forward with the contract, with the granting of probate, the seller needs to waive the condition.
Tenancy At Will
A person decides to act for the estate to sell the home, but does so without court authorization. If a person wishes to take on that risk, the real estate purchase contract should include terms that sets out the agreement between the parties if no grant of probate exists at the time set for possession. Without such terms written into the contract, the seller, meaning the person signing the sale contract, is then in breach of the contract. Tenancy at will is the right of the buyer to move into and live in the home. This right occurs, even with no registerable transfer of land due to the lack of a grant of probate.
Under tenancy at will situations, the buyer usually pays rent to the estate until the court grants probate and the transaction closes. The biggest risk in this situation, is that the court determines that the home is gifted to a specific person, or any other reason that does not allow the estate to sell the home.
Fast Probate For Selling Estate Homes After Death
The fastest, quickest and most expedited method of securing probate when selling estate homes after death, is the limited grant of probate. This legally allows the names executor to sell the home. Usually, the limited grant of probate takes about 2-3 weeks to secure. Often this time is needed to prepare the home for listing with a real estate agent.
Legal Help Selling Estate Homes After Death And With Probate
The wills and estates lawyers at Kahane Law Office in Calgary, Alberta, help people each day with their wills and estates’ needs. We regularly deal with the surrogate court. Due to the high volume of real estate work practices at the firm, we deal with many estate situations when a home requires selling. As such, our firm acts quickly and efficiently in securing probate or, even faster, a limited grant of probate in Alberta. Call today for the help you need when dealing with an estate. For quick help and information email us directly here. Also please feel free to call us. In Calgary surrounding area call 403-225-8810. If you live in Edmonton or surrounding area, please call (780) 571-8463. In addition, for more information, click here to watch our video on probate and probate lawyers.