Selling a property that is a part of a probate proceeding can be stressful on the family and the Personal Representative of the estate. It can be especially stressful if the person who passed away died “intestate” meaning they did not have a will and did not make their desires for their estate known. Whether someone dies intestate or with a will, you’ll have to go through Probate which is a process where the court appoints the Personal Representative and gives them permission to disperse the decedent’s belongings and assets and sell their property as needed.
Once that’s done, you can move forward with selling the person’s real estate. This requires a number of documents that the title company will need in order to close. Below is some information that will help you get your documents in order so you do not have to scramble or start lengthy court proceedings before listing the property for sale.
Required by Title in order to close:
The below documents are also required by us in order to list the property for sale. Probate can take a while and if you get under contract without the probate docs in order you could cause a huge delay and lose the buyer.
In short, the four documents we will always need are the: Application, Order, Letters Testamentary and Death certificate for anyone else on title with the decedent
- Application – usually called a Petition for Informal Probate of Will and Appointment of Personal Representative
- Order of Informal Probate of Will and Appointment of Personal Representative
- Letters Testamentary
- Death Certificate of anyone else named on the title (usually a spouse ) that has previously passed
- A bank account in the name of the estate – title companies can ONLY pay the owner of the property so they have to make the check or wire the funds to an account with the name of the decedent. This usually is something like “The Estate of _______________”
NOTE: If it is NOT an Informal Probate (meaning someone is supervising it) then the documents might be named slightly differently but the intent will be the same.
Sometimes required by the title company:
Occasionally the title company asks for the below but not always:
- Provide the Title Company with an affidavit as to the total valuation of the gross estate of ______________, deceased, or a certificate of “No Tax Due”, or a copy of IRS Form 792
Nice to have but not required by title:
- Acceptance of Appointment as Personal Representative
Other documents we do not need from the family in order to sell but that you might have:
- Notice to Creditors
- Proof of Notice – If any exists
Other helpful info:
The Personal Representative may not delegate their duties through a Power of Attorney form to another person. The PR must be the ones to sign all documents. If you’re not in the state or town where the property is being sold don’t worry. The title company can send a mobile notary to you wherever you live (in the United States) and you can sign virtually. If the sale ends up being with a cash buyer, you might even be able to close by video or by a digital signature program such as Docusign. This will be up to the individual title company to decide so we’ll just have to see what happens when the time comes.
If your loved one passed away and owns property inside of a Trust, the above instructions will not apply to you. You will usually NOT have to go through probate. See the “Selling Property with a Trust” blog post for more information.
Finally, probate usually needs to be done in the county in which the property exists, so sometimes you will need more than one probate if the decedent had property in multiple counties.
This post, nor any information on this site, should be considered legal advice. Please consult an attorney for any issue or situation which might have legal implications.