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Whether the deceased is your dearly departed loved one, or you’re simply a court-appointed personal representative, the weight of fulfilling someone’s final wishes during probate is a heavy load to carry.
Add in the complexity of selling a house during the process and honoring those last requests can feel impossible.
While the probate process varies from state to state, there are ways to simplify the process no matter where you live. So, how does an executor sell a house? Follow these 7 tips for a smooth road to closing.
1. File the will with the probate court.
In most states, probate laws dictate that the decedent’s will must be filed with the probate court within 30 days of the date of death.
If you don’t file within that period, you’re in violation of the law and the court may refuse to appoint you as the estate executor.
That’s why all executors should file the will with the probate court within the state’s time frame—regardless of whether the estate will need to go through probate.
Let’s say you don’t file the will because you believe the estate is too small to require probate. Then, months later you discover that appreciating assets (like the house) have increased the estate’s value so that it now requires probate.
If you didn’t file the will with the court by the state-dictated timeline, then you’ve created a bunch of legal headaches for yourself.
2. Take control of the probate timeline.
Once you file that document, the probate timeline kicks into gear, whether you’re ready or not.
And with all of the rules, regulations, and deadlines involved in the probate process, many executors feel rushed and overwhelmed—with little time to gather all the necessary documents, forms, and paperwork.
Luckily, that timeline isn’t always set in stone.
“There can be rules or guidelines for when a will is supposed to be filed in the probate court, but most people don’t have a will so that’s often irrelevant,” explains Sacramento-based probate attorney John Palley, who has been awarded Martindale-Hubbell’s prestigious “AV” peer review rating.
“Typically, the clients are in charge of when we file for probate, so we don’t have to start it today.”
While you can give yourself a little breathing room of a few weeks before filing the will—and even more if there’s no will to file—you don’t want to wait too long, or you’ll unnecessarily delay the lengthy, often year-long timeline.
“Filing the will with the court triggers many other things during the probate process, including when they’ll be able to sell the house, access the bank accounts, sell the car, and do all of those types of things,” explains Palley.
“So, the sooner you start, the sooner you’re in control to finish the process and move on with life.”
3. Check if the estate qualifies for streamlined probate.
Everyone’s heard horror stories of probated estates where the process drags on for years—but that doesn’t have to be the case.
“In a traditional, formal probate process, the timeline is six to seven months or longer. That’s why many states have adopted an efficient probate system with an abbreviated probate process,” explains Palley.
Other states have developed their own laws and regulations to simplify and shorten the probate process, like California’s Independent Administration of Estates Act (IAEA).
“Rather than go through all of these steps of making it a formal process and paying a ton of money in attorney fees and court costs, you may be able to have an abbreviated probate instead, which can be done in a couple of months in some states,” advises Palley.
“This works as long as everyone in the family is on board and there are no creditor problems or anything else.”
4. Don’t hire an agent until the court names you as executor.
It’s true that failing to complete every step of the probate process within the required timeline can land you in legal hot water—however, jumping the gun can get you into trouble, too.
“Generally speaking, you have no legal authority until the court has named you as the personal representative. So, in most cases you really can’t do anything,” explains Palley.
“You can’t sell the house, and in reality, you can’t even list that house for sale. You also can’t clean the house, discard stuff, or have a garage until you’ve been named as the executor by the court. That’s why I’m a big proponent of getting probate filed as quickly as possible.”
Not only can you not list the house, you can’t even sign the listing agreement with an agent until you’ve been legally appointed as the executor or personal representative by the probate court.
“As soon as a personal representative or executor to the estate is officially designated by the court, they can then engage a Realtor,” says Rob Kittle, a Certified Probate Real Estate Specialist (CPRES) and top-selling agent in Fort Collins, Colorado.
“The agent will need proof that they are the legally appointed executor, which means that they are legally able to sign the listing agreement and the deed.”
However, just because you can’t sign any documents to officially hire an agent, doesn’t mean you can’t consult with one.
“Technically, you cannot hire an agent until the Letters of Administration (if there’s no will), or Letters Testamentary (if there is a will), are issued by the court to name you as the personal representative,” says Palley.
“However, there’s certainly no reason that you can’t interview or select the agent and discuss things like the list price, and if you should maybe paint that bedroom or install new carpet. The agent can also prepare a market analysis report and come up with a game plan.”
5. Make sure your agent has experience with probate real estate sales.
Perhaps even more important than when you hire your agent is who you hire to help sell the house during probate.
“Selling a home during the probate process is much more difficult than a traditional home sale, advises Kittle. “So, it’s important that your agent knows about the legal aspects of probate, especially if there’s a big legal battle going on over the estate.”
It requires a lot of know-how to sell a house during probate because to make sure you meet deadlines and follow the law—especially if the home sale requires court confirmation through an overbidding process.
That’s why it’s important to hire an agent who has probate experience, even if you’re already working with a probate attorney.
“In many ways, a probate sale and a regular sale are going to be almost identical, but it’s definitely important that your agent has probate experience, just so that they understand the differences,” advises Palley.
“The biggest difference is that a probate purchase agreement contains a couple of different clauses. It lays out for the buyer that there might be a need for probate court confirmation, which would likely delay the sale. And there are several disclosures which are not required of a probate seller.”
A probate agent can also help you figure out what to do if your inherited property has a current tenant with a lease agreement, and whether or not the home sale needs to wait until after the lease is up.
If yours is destined to be a complex probate home sale, it’s probably best if you hire an agent who’s certified to handle probate sales. Trained by the U.S. Probate Services, a Certified Probate Real Estate Specialist (CPRES) has specialized knowledge needed to deal with the complicated issues that sometimes arise during a probate sale.
6. Sell the house as soon as possible in the probate process.
Prioritizing during the probate process isn’t easy, but one thing you definitely want to tackle as soon as possible is selling off any assets that are costing the estate money.
“We usually want to deal with the important assets first, which typically is going to be the house,” says Palley. “Dealing with the real estate is at the forefront because it’s incurring costs while it sits there. We’re paying a mortgage, utility bills, taxes and insurance—all things that cost the estate money.”
Of course, that’s easier said than done. You can’t sell the house until you empty it first—which requires going through all of the decedent’s personal property, including private and intimate items.
With grief clouding your judgement, you might hang on to too much, or wind up selling treasured, valuable items for a song, simply to get through the process as quickly as possible.
If house-related expenses are draining the estate, but you’re not in an emotional state to get the home ready to sell, it may be time to bring in the experts.
For smaller estates, you may be able to find a personal organizer or decluttering expert who specializes in estate clear outs to help you get the house ready for around $30 to $50 an hour.
For larger, more valuable estates, it’s wiser to hire a reputable estate sale expert who’s a member of the National Estate Sales Association. The right expert can help you sift through the decedent’s belongings, and make sure that all belongings put up for sale sell or what they’re worth—all for a percentage of the estate sale proceeds.
Court-appointed executors who are not emotionally connected to the deceased can also run into issues getting the house cleared out.
Oftentimes an outside executor is needed when there are multiple heirs who disagree about how the estate should be handled. When that’s the case, the home sale may be delayed until decisions are made about what happens to the contents inside.
If heirs squabbling over belongings is holding up the home sale, you may be able to remove disputed heirlooms from the property for safekeeping until a decision is reached. That way, you can move forward with the home sale even if some of its contents are still disputed.
7. Use estate assets to improve the property before selling.
Sometimes probate properties take longer to sell than traditional home sales. While there are multiple reasons for this, a big one is that the executor is attempting to sell the property as-is.
“One problem that can arise during probate is selling the property as-is. Maybe the heirs are out-of-state, or don’t have the resources or the inclination to fix the house up before selling,” explains Kittle. “It becomes a little tricky if the lender requires improvements or repairs, but they aren’t done prior to closing.”
Motivated by the desire to get the home sold as quickly as possible, some executors want to list the house on the market immediately—without spending any estate assets on repairs or improvements.
Unfortunately, you’ll have a hard time finding a buyer to pay what the house is worth if it’s outdated or rundown. Millennials are today’s largest home buyer pool, and most are looking for move-in ready properties.
Plus, as Kittle points out, the buyer’s lender may insist that some repairs or improvements be made before they approve the loan. So, you’ll wind up spending that money you thought you were saving by selling as-is, but you’ll still be selling at that lower, as-is price.
If there’s money in the estate—either in bank accounts or in smaller assets that can be sold off—it wiser to invest a little in fixing up the property before listing it so you can sell a little later, but at the best price.
However, don’t let repairs or improvement projects delay the home sale too long.
“I can think of this one case where it took my clients literally a couple of years to get the house ready for sale,” remarks Palley.
“They were working jobs during the week, and then fixing up the property on the weekends, all while dealing with the grief. Whereas if they had just hired some people to fix the house, the thing would’ve been sold significantly quicker.”
In this scenario, any extra money gained by making improvements was lost in the costs of maintaining the property for several years. Had they spent money on a contractor, they could’ve more than covered the expense by getting the home sold faster.
It isn’t easy to think of the numbers while you’re mourning, however when you’re the executor, it needs to be done. You need to sit down with your probate agent and do the math to figure out if it’s financially smarter to sell as-is, hire a contractor to fix it up, or to spend time and money DIYing the repairs yourself.
Final advice: Selling real estate during probate requires expert help
Wading through all the red tape and paperwork of the probate is a tricky business when you’re weighed down by the responsibility of fulfilling someone’s last requests.
Navigating the sale of a house during the complex probate process will be easier if you familiarize yourself with your state’s probate laws, seek out expert legal advice, and enlist the help of a top real estate agent with probate experience.