\u201cAs our population ages, I think we\u2019re going to be faced with this more,\u201d said top real estate agent Sue Smith<\/a>, who serves northern Virginia and recently had three transactions in probate. In California, statistics show that 49,152 new probate cases were filed during the 2016-2017 Fiscal Year, the latest data available representing an increase of 4% increase over the previous fiscal year.<\/p>\n If you sell a house before probate begins\u2014and you don\u2019t have the authority to do so\u2014you could face legal consequences, such as a lawsuit<\/a> brought by other beneficiaries or even criminal charges<\/a>, such as larceny and fraud.<\/p>\n Below, we\u2019ll walk you through what the probate process involves so that you can choose your next steps wisely.<\/p>\n Probate is a formal legal process<\/a> that recognizes a will\u2019s validity and appoints an executor or representative to distribute assets to the intended beneficiaries.<\/p>\n People often assume that if they have a will, they can avoid probate, but that\u2019s not always the case. Each state has its own probate laws<\/a>, as well as timelines<\/a> for paying creditors, taxes, and beneficiaries, said Dennis Brislawn<\/a>, a probate attorney in Bellevue, Washington, who also is authorized to practice in Oregon and Alaska.<\/p>\n For example, in Washington, even if a person has a will, \u201cthere\u2019s a monetary limit that says if you have $100,000 or more of assets, that would be subject to probate,\u201d he said. (You can look up your state\u2019s probate laws here<\/a> courtesy of FindLaw<\/a>, an award-winning free online legal portal.)<\/p>\n Filing a will makes it public record, but probate begins the legal process that the court oversees to carry out the will. Assets such as retirement accounts, the proceeds of a life insurance policy, pension plan distributions, wages, commissions, and securities typically don\u2019t need to go through probate<\/a>, according to the legal website AllLaw.com<\/a>.<\/p>\n But real estate and other real property does, subject to a person\u2019s estate planning<\/a>.<\/p>\n Some states require filing a will with the probate court within 30 days of death<\/a>. Other states allow for three months.<\/p>\n However, because probate can take three months to several years<\/a>, depending on the estate\u2019s value<\/a> and whether your state has adopted the Uniform Probate Code<\/a>, you\u2019re better off starting the process<\/a> as soon as you\u2019re able.<\/p>\n A living trust<\/a>, also referred to as a revocable trust, is one way to manage assets without going through probate. A trustee (typically the person who owns the property, as well as a co-trustee in the event of your death) manages the property as you direct for your benefit, or for your beneficiaries. A trust also can provide for the distribution of property upon your death.<\/p>\n \u201cIf a trust owns your titled assets, they don\u2019t go through probate,\u201d Brislawn said.<\/p>\n If a house passed into your care through joint tenancy<\/a> with a right to survivorship, or a transfer-on-death deed<\/a>, you can legally sell it without going through probate. You also can sell a house if you are a surviving spouse<\/a> in one of nine community property states<\/a>: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.<\/p>\n However, if you\u2019re a child or other relative of a decedent in a community property state, the same rule doesn\u2019t apply. It\u2019s best to let the court sort out the will, or consult with a probate attorney or a real estate agent with probate experience<\/a>.<\/p>\n Smith, who has 31 years of experience and specializes in probate, said she always ensures the death certificate is registered with the county courthouse and obtains a proper list of heirs, usually based on a will. She also works closely with a title company to investigate if the seller is selling a house with a lien<\/a>, which would interfere with closing.<\/p>\n Even if you\u2019re an executor of a will, you need to file the will with the court so that your actions aren\u2019t interpreted as concealing anything for your own financial gain<\/a>. A person who fails to file a will in his or her possession can be subject to a lawsuit by someone who claims he or she was hurt financially by the failure to file.<\/p>\n In Washington, a probate court can grant a personal representative of an estate nonintervention powers<\/a>, meaning that the person can facilitate the settlement of the estate without having to obtain the court\u2019s approval. There are guidelines for this, however, including that the personal representative cannot be a creditor of the testator, or the person who has made the will, at the time of death.<\/p>\n \u201cIf you have nonintervention powers, typically you can then go hire somebody to list the property and sell it, but you want to be careful about determining value,\u201d Brislawn adds. \u201cIf you\u2019re going to sell it to yourself, that\u2019s a built-in conflict of interest.\u2026 Sweetheart deals<\/a> are potentially a violation of your duty.\u201d<\/p>\n Regardless of the estate plan<\/a>, someone must be in charge to communicate to a probate attorney or real estate agent what should happen to the house, such as selling it to convert it to cash, pay expenses, and distribute the remainder, Brislawn said. These professionals will keep track of creditor notices, expenses such as Medicaid reimbursement, and various taxes.<\/p>\n \u201cWashington has a real estate excise tax. We\u2019ve got death taxes,\u201d he said. \u201cThere are a lot of moving parts.\u201d<\/p>\n Smith said she checks that the will matches the signatories and that the executor or personal representative has the correct paperwork to be the proper signatory for a listing, a contract and a settlement. Then she talks to everyone who wants to be involved through what\u2019s about to happen.<\/p>\n \u201cI explain what we\u2019re doing, how we\u2019re going to do it, and I make sure that they\u2019re comfortable with that,\u201d she said. \u201cIt\u2019s a sad time, and a lot of people don\u2019t even know where to start. I help them start. I give them references to clear out the house, make the home presentable, set a marketing plan, and really help them through the transaction.\u201d<\/p>\n Before settlement, she consults with the heirs to prepare an accounting of where the proceeds of the sale will go so the title company<\/a> can disburse the funds. All signatories need to be present at settlement; they cannot have a power of attorney<\/a> represent them, Smith said.<\/p>\n \u201cWhether we need to do it in stages or we all meet at one time, we can handle that as well.\u201d<\/p>\n Any real estate transaction can be challenging, especially under such emotional circumstances. However, your real estate agent, as well as a probate attorney, have the experience and the resources you need to assist you during this difficult time and be mindful of all the variables.<\/p>\n If you need legal help, lawyer ratings services such as Avvo.com<\/a> and Martindale-Hubbell<\/a> have directories searchable by location and practice area. Many attorneys offer free initial consultations to answer your questions before being retained.<\/p>\n Perhaps the best way to avoid second-guessing and worry down the line is to put your affairs in order while you can. The AARP notes that according to one survey, the top two reasons why people failed to tackle or complete an estate plan<\/a> were they \u201chadn\u2019t gotten around to it\u201d (47%) and \u201cdon\u2019t have enough assets to leave to anyone\u201d (29%).<\/p>\n Smith said she especially sympathizes with families where someone has died suddenly, leaving relatives and an estate in turmoil.<\/p>\n \u201cI encourage all my buyer clients to have their estate planning done when they purchase a house. It\u2019s just a really good thing to do,\u201d she said. \u201cIt comes down to being prepared.\u201d<\/p>\n Header Image Source: (Free-Photos\/ <\/a>Pixabay)<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":" If you sell a house before probate begins\u2014and you don\u2019t have the authority to do so\u2014you could face legal consequences<\/p>\n","protected":false},"author":76,"featured_media":10996,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","cybocfi_hide_featured_image":"","footnotes":""},"categories":[326,319],"tags":[],"class_list":["post-10995","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-inheritance","category-selling-advice"],"acf":[],"yoast_head":"\n![\"\"](\"https:\/\/www.homelight.com\/blog\/wp-content\/uploads\/2019\/06\/can-you-sell-a-house-before-probate-books.jpg\")
<\/a>What is probate, and how does real estate fit in?<\/h2>\n
When does probate begin?<\/h3>\n
![\"A](\"https:\/\/www.homelight.com\/blog\/wp-content\/uploads\/2019\/06\/can-you-sell-a-house-before-probate-house.jpg\")
<\/a>Are there circumstances where you could rightfully and legally sell a house outside of probate?<\/h2>\n
![\"Paperwork](\"https:\/\/www.homelight.com\/blog\/wp-content\/uploads\/2019\/06\/can-you-sell-a-house-before-probate-file.jpg\")
<\/a>If I\u2019m the executor of the decedent\u2019s will, can I skip probate?<\/h2>\n
So, what are the basic steps of selling a house during probate?<\/h2>\n
![\"A](\"https:\/\/www.homelight.com\/blog\/wp-content\/uploads\/2019\/06\/can-you-sell-a-house-before-probate-keyboard.jpg\")
<\/a>How can I be sure that I\u2019ve followed all the rules?<\/h2>\n