At least several times a month, I receive a call from someone regarding a home or property that belonged to their parent or other family member who has died.
Lack of a Will or Deed
Usually, they encounter a problem that their parent failed to leave the family home to their heirs, such as a child or other family member. Either the parent failed to leave a will or they failed to deed the property. A parent does not necessarily need to have a will if they name their beneficiary in a deed. Even then, if there is no deed or the deed is drafted incorrectly, then legal title to a property cannot be conveyed.
When a decedent dies without a will or proper deed, then a home cannot be legally sold, refinanced, or owned by anyone other than the decedent’s estate. The heirs will be compelled to file a probate action to legally dispose of or distribute the family home. Probate can be frustrating, especially when heirs learn they must probate an estate when they are trying to transfer it or get a mortgage.
Two Methods to Administer an Estate in Probate Court
There are several ways to administer an estate in probate court. Depending on the circumstances, an heir may be able to use a simplified process where there is minimal probate court involvement. When choosing the “simplified” route, there are two avenues to take: Informal unsupervised administration or formal unsupervised administration.
1. Informal Probate and/or Appointment of Personal Representative
If the decedent dies testate (with a will) or if all those with equal right to appointment as Personal Representatives agree on who should be appointed, then it is best to apply for an informal probate proceeding. Informal proceedings are commenced by filing an “Application for Informal Probate and/or Appointment of Personal Representative”. In addition to the Application, one must file the decedent’s will (if there is one), and a certified copy of the death certificate with the county probate court where the decedent lived. The Application is for the Probate Register to submit the will, if any, to probate and/or appoint a Personal Representative.
The Personal Representative is usually named in the will. Within certain legal limits, a Personal Representative has the authority to perform administrative duties on behalf of the estate and the estate’s beneficiaries. They notify those who are entitled to part of the estate’s property or deal with the estate’s finances, which can include real estate. With court approval, they can sell or refinance real estate.
When the Application is granted, the Register will sign a form called “Register’s Statement” admitting the will and/or appointing a Personal Representative. It is important to note that since the appointment can be contested at any time in a formal proceeding, any person with an equal right to appointment as Personal Representative must renounce that right, especially if there is no will. Thereafter, an appointed Personal Representative becomes qualified to act by filing an Acceptance of Appointment and any required bond. The Personal Representative will proceed with unsupervised administration until the estate is closed.
2. Formal Probate and/or Appointment of Personal Representative
When the decedent dies without a will, or those persons with equal rights to appointment of Personal Representative cannot be found, the next option is to petition the court through a formal proceeding. Formal proceedings are commenced when an “interested person” files a “Petition for Probate and/or Appointment of Personal Representative” and properly notifies all interested persons. After a court hearing, if the petition is not contested, or if the judge decides to continue the proceedings over the objections, the judge will enter an order called an “Order of Formal Proceedings”.
This order may admit a will, determine the heirs of the deceased, and appoint a Personal Representative. Once the order is entered, the Personal Representative qualifies to act by filing an Acceptance of Appointment and any required bond. The Personal Representative will proceed with the unsupervised administration until the estate is ready to be closed.
When a parent with real estate assets fails to either leave the home in a will, or fails to deed the property to an heir before they pass, then a probate action is unavoidable. Any disagreement about the appointment of a Personal Representative, or disputes on how estate assets will be disbursed will cause legal delays. Regarding transferring real estate upon a death, the best way to avoid the legal frustration and problems is to prepare an estate plan.
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