People often ask if they need to wait until AFTER a decedent’s estate closes in order to sell the deceased loved one’s house. This is a common misconception and nothing could be further from the truth. The sale process may be completed while the estate is open.
When a loved one dies owning a house solely in his or her name without a joint owner, the house will need to be probated to manage it, list it for sale and ultimately sell it. Someone will need to be appointed through the probate court as the Personal Representative (this position used to be called Executor) in order to have authority to transact the sale.
In an uncontested estate, opening the probate estate can generally be accomplished without the need for a formal court hearing. Throughout the process, the correct papers must be filed with the court at the proper time. As the estate opens, the probate court will issue Letters of Authority giving the Personal Representative the ability to manage the estate.
After the Personal Representative is appointed, he or she will have the ability to sign a listing agreement with the Realtor for the estate. Care must be taken to include certain provisions in the listing agreement and the purchase agreement to protect the estate and the Personal Representative. A skilled attorney and Realtor can help make sure that the documents are properly drafted.
Once the house is marketed, a buyer is identified, and a purchase agreement is negotiated, it may be necessary to petition the probate court for a hearing to approve the sale of the house. The Letters of Authority will state if the probate court has placed limitations on the ability of the Personal Representative to sell the house. If a hearing is necessary, the hearing process can take a few weeks. Many estates don’t have a requirement that a hearing be held prior to completing the sale and so the sale can proceed without any court involvement.
After the house sells, the proceeds obtained from the sale can be distributed at the appropriate time to the heirs or devisees of the estate.
Administration of a decedent’s estate takes skill, persistence and know-how. It presents many traps for the unwary. Having an attorney and Realtor familiar with the process and the pitfalls can make a challenging process easier.
Howard H. Collens is a founding member of Galloway and Collens, PLLC. Serving the metropolitan Detroit area, the law firm focuses its practice in Estate and Trust Administration, Real Estate Law, Estate Planning, and Elder Law.