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If you’ve been tasked with the complex process of selling a home in probate, it’s natural to feel overwhelmed. Yesterday you were just a daughter, son, sister, brother, or friend. Now you’re an executor of an estate and dealing with things like petitions and going to court. That’s a lot to take on.
And although upward of 5 million homes are sold every year, only a fraction of those go through probate, a specific process with its own rules that most people have never had to navigate before. In this case, a simple Google search might only lead to more questions.
So we turned to the experts who’ve actually dealt with probate paperwork and estate property administration to find out: how do probate sales work? They helped us identify the biggest misconceptions around probate real estate and clear them up for you, the person with a day job and family to raise while juggling this challenging (yet critically important) responsibility on the side.
Myth 1: So long as an estate has a will, the property won’t have to go through probate.
Even with a will in hand, you’ll likely still need to go through the probate process if only to have the legal document validated in court so that the estate assets can be legally distributed.
“There is no requirement that a will or property go through probate, but if the decedent owned property that is not arranged specifically to avoid probate … there is no way for the beneficiaries to obtain legal ownership without it,” writes Brette Sember, a probate attorney based in New York, for LegalZoom.
In most cases, probate can only be avoided with regard to property when:
- A living trust is in place.
With a living trust, the assets of an estate are put into a separate legal entity before a person dies. Those assets, which can include property, automatically transfer to established beneficiaries without the need for court involvement.
- The house is passed on to a surviving spouse.
Through joint tenancy, if one owner of a house dies, their surviving spouse assumes their share of the property without the need for probate.
- The decedent recorded a beneficiary deed (aka “transfer on death” deed).
This special type of property deed automatically conveys property interest to the designated grantee when the current owner dies therefore bypassing probate.
While the above instances often mean probate can be sidestepped, depending on where you live and the intricacies of your case, you still might be required to go through the probate process.
Work with a probate attorney early on to get a better idea of the process for your case specifically. Even if the estate has a will, you should consult with an expert on probate law to determine next steps.
Myth 2: All probate sales are the same.
There are different levels of probate that will come into effect depending on state law as well as the size and complexity of your estate.
Independent administration generally means less court oversight, while dependent administration requires that most of an executors’ decisions be approved by the court.
“I would advise my client to petition for ‘independent administration’ based on the high likelihood of success on the merits when the estate is small and not complex,” explains attorney & CEO of LegalAdvice.com, David Reischer.
Factors like there being no will or the executor operating from out of state will make it more likely that you have to go through dependent administration.
Myth 3: If you’re selling the house in probate, you can skip the appraisal.
“The first thing to do [in the probate process] is to get the property appraised by a certified appraiser approved by the probate court,” advises Reischer. And this is true whether you’re selling the house or keeping it among beneficiaries.
The immediate appraisal has less to do with your intent to sell the property, and more to do with the date of death valuation, which records the market value of each estate asset at the time that the decedent died.
“The attorneys usually need, right off the bat, the date of death valuation,” explains Laurie Davies, a top-selling real estate agent in Boca Raton, Florida, with extensive experience in selling probate properties. “They need to know, based on days after the person died, what their house or condo was worth.”
The valuation is required more for tax purposes than real estate, but it’s necessary nonetheless. Trying to bypass the initial appraisal will only stall the probate process.
In some states, the home can’t be sold for less than the death valuation. However, that doesn’t mean you can’t price the home based on comparative market analysis (CMA) and the knowledge of your agent down the line.
Myth 4: Probate sales aren’t marketed like other homes.
Marketing a probate home is similar to any regular listing, except there are some caveats, says Davies. The executor of the property can list the home traditionally, but they’ll need to include a disclaimer that the deal is contingent on the seller getting probate court approval.
As the executor of the property, you will be responsible for paying monthly fees like the mortgage, taxes, maintenance and HOA fees on the property, Davies notes. “In my experience, executors have chosen to get the property on the market so that they know that it’s at least sold. And we’re just waiting for the go-ahead from the probate attorney.”
Myth 5: Anyone can sell probate property.
In addition to hiring a good probate lawyer, you’ll want to work with a real estate agent well-versed in the sale of probate properties who knows how to work with the other professionals representing you.
“As the agent, it’s really important to have a good partnership and a good relationship with the probate attorney that’s handling it. They understand from the get-go what the steps are and the timeframes and what they can expect moving forward,” Davies says.
An experienced agent will work with you and the attorney to make sure the process goes smoothly. They’ll also be an asset during the sales process, often working to educate the buyer’s agent about the differences between probate and traditional sales.
Without an experienced team on your side, you could end up missing deadlines, filing court procedures improperly, or miseducating buyers about the sale of your property.
Myth 6: Probate properties are always discount properties.
You may have heard that probate is the place to get a great deal on real estate. But that’s not necessarily the case. In California, for example, probate law requires that a house in probate be sold for no less than 90% of its appraised value.
Moreover, “a house in probate is still going to sell at market price unless, just like any other deal, the property’s in bad condition or it was left with deferred maintenance,” says Davies.
“Of course, there are some owners that are going to need the property to move quickly. So in those cases, maybe a buyer could get a better price.”
Myth 7: The first offer on a probate sale wins.
In most states, the offer on a probate sale is subject to court confirmation, which requires a formal overbidding process.
“Most jurisdictions require that the sale be advertised with the offered price from the buyer in a local newspaper,” says Reischer. “The advertisement informs the public of the sale in order to allow for open bidding at the court hearing among other interested parties. The seller will attend the court hearing and wait for the bidding process to proceed.”
In California, for example, each subsequent bid could be 5% more than the last, plus an additional $500. Like an auction, this process can continue until the highest bidder wins. The original buyer is allowed to bid as well.
Myth 8: Probate sales and estate sales are the same thing.
Davies says one of the biggest misconceptions she sees is that people confuse probate sales with estate sales.
However, while probate sales involve the court-supervised procedures of marketing a house and formal bidding to find a buyer, an estate sale is a means toward liquidating all the belongings of an estate—like a garage sale on steroids with lots of family heirlooms, antiques, and furnishings.
Myth 9: Court oversight is somewhat of a formality.
Court-confirmed probate sales are rule-driven and any missteps can cause delays.
Los Angeles-based real estate agent and probate specialist Nancy Sanborn describes the process of selling probate real estate as follows on her website: “Deadlines are unforgiving, documentation is specialized, and the court’s oversight must be honored throughout the marketing, offers, negotiations and sale of the property.”
For this reason, even if you’re lightning fast when it comes to getting the house sale ready, and offers come pouring in quickly, a probate sale will typically take longer than a traditional sale. According to the American Bar Association, the average probate process as a whole takes between six to nine months.
The longer process is due mostly in part to the court oversight, Davies reasons. “I would say that it’s really the approvals of the court, the notifications of the court, and making sure there are no debtors [that extends the timeline].”
Depending on the caseload of the court in the property’s area, the sale could take even longer. That’s why hiring an experienced probate lawyer who knows the ins and outs of filing can make all the difference.
How probate sales work—the truth is, it’s complicated!
The myths surrounding probate may be the stuff of real estate legend, but armed with the right information and the right team (like a top agent in the area with probate experience), you can navigate each step, deadline, signature on the way to closing without any trouble.
Header Image Source: (Denis Kuvaev/ Shutterstock)