It seems that at least several times a month I receive calls from someone regarding a home or property that belonged to their parent or other family member who has died.
Usually they encounter a problem that their parent has failed to leave the family home to their heirs, such a child or other family member. Either the parent failed to leave a will or they failed to deed the property to their heirs before passing. To be clear, when it comes to leaving a home to adult child, a parent does not necessarily need to have a will provided that the parent names their intended beneficiary in a deed. Even then, if there is no deed or the deed is drafted incorrectly, then legal title to property still 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. Therefore, at some point heirs will be compelled to file a probate action in order to legally dispose or distribute the family home. Probate can be a frustrating experience, especially when heirs learn that they must probate an estate right when they are trying to transfer real estate or get a mortgage.
Real Estate and Probate
There are several ways to administer an estate in the 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.
Informal (Application for 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 representative 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 admit 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, 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 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.
Formal (Petition for Probate and/or Appointment of Personal Representative)
When the decedent dies without a will or those persons with equal right 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. When it comes to transferring real estate upon a death, the best way to avoid the legal frustration and problems is to plan ahead with an estate plan.
About David Soble: For over 25 years, David Soble
has resolved frustrating legal and financial issues for individuals and business owners as they relate to real estate, contracts and financial disputes.