The Top 3 Mistakes People Make When Selling Real Estate Subject to Probate

Equitable Mortgage

By: David Soble

The Michigan Probate process involves the administration of a deceased person’s will or the estate of a deceased person without a will. The legal process can be an extremely difficult and stressful process for many people who are already experiencing the grief of losing a loved one.  State probate regulations set forth specific procedures for the distribution of assets to help people with the process of listing real estate during probate action. 

In Michigan, the first and most important step in a probate sale is to contact a probate attorney who is experienced and who you trust. A probate attorney will handle, among other things,  the probate administration of the estate.  An experienced attorney will follow the legal and procedural requirements by gathering the documents you need, drafting and filing the probate forms and pleadings, along with speaking on your behalf to the judge presiding over the estate. They will also help collect any money from insurance, solve tax issues, and serve as a general advisor throughout what can be at times a troubling process.  Opening an estate without the assistance of a probate attorney can open a person to personal liability if they fail to follow the informal probate process or formal process. 

Often the most problematic and stressful part of probate court has to do with the transfer of property. This is because the protection of heirs-at-law, and the estate assets are paramount under the law.  The transfer of property includes both personal property as well as most people’s largest asset: the home.  The probate sale of a home or other real estate is much more involved than a traditional sale. When it comes to real estate sales and probate, here are the three of the top mistakes people commonly make that involve property in probate.

  1. Not Starting The Probate Process Early Enough.

Michigan probate law requires that a personal representative publish a death notice in the local newspaper and notify creditors and heirs of the death. This process formally sets the clock for people who believe they have a claim against the estate to make their claim. Since real estate is an asset of the estate, it is subject to creditor claims. The publication process can take several weeks, and even more if a probate court requires it.  An estate representative needs to open the estate as soon as possible so that they market the property.  This is especially true when the financial situation of the decedent was not good.  If the home mortgage was in default at the time of the decedent’s death, the heirs of the estate could stand to lose the equity in the real estate if the estate is not open promptly to allow the property sale.  Even when a home is not in distress, the estate executor cannot list a house for sale in probate until they have received the letters of administration from the probate court. 

2. Selling Property Without Probate Court Authority.

The personal representative or estate executor cannot sell a home that is subject to probate without the court’s authority. In Michigan, the probate court will either grant an estate representative the right to sell property during the probate proceeding or they won’t.   Without the court’s authority, the property cannot transfer.  

Therefore, it is imperative that before real estate is listed for sale, the personal representative seek probate administration. The court will want to see that an appraisal price is an acceptable price or reasonable market value for the heirs of the estate. 

Once your  probate attorney obtains the court’s permission to sell the home at an attractive price—then the personal representative can list the real estate, establish a sales price, and solicit real estate buyers. While it is possible to do this without a real estate agent, using  an experienced agent will simplify, and often speed up the sales process.  This is because they are familiar with the market and should already know the rules and regulations involved with local probate estate sales. While the probate attorney handles the legalities of the estate in court, it is the sales commissioned real estate agent who handles the actual sale of the real estate, making sure it is properly valued and listed.

  1. Over Disclosing When It Is Not Legally Necessary. 

Your probate attorney will help to fully disclose all assets of the estate and the persons who may have interest in the personal property and real estate. However, a personal representative of an estate is exempt from disclosing the condition of real estate or naming any home defects under the Michigan Seller’s Disclosure Act (the “Act”).   Once a personal representative takes it upon themselves to disclose the condition of a property by completing the home seller disclosure form in detail, they become subject to the Act.  They can be held legally accountable for misrepresenting a home’s condition. So it is very important that a personal representative notifies potential buyer that they are exempt from completing the form under law.   If a personal representative is uncertain if they should disclose a home defect or not, they should consult with a real estate attorney

Throughout the sales process, the probate attorneys at Soble law will coordinate with the real estate agent on estate property as well as other third-party professionals associated with the sale and closing of the sale. Since the representative for the estate is accountable to the court and the heirs to the estate for all monies and proceeds from the sale, it is vital to have a probate attorney involved with the transaction to ensure that the sale and the court action move ahead as smoothly as possible.   

Soble PLC provides that their clients are properly protected throughout the probate and property sales process.  Contact us today at 888.789.1715 if you have any further questions or concerns. Disclaimer: This information is for educational purposes.  Every legal case presents its own unique set of facts and circumstances. Please consult with a licensed attorney who practices in the legal area discussed.

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