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If you inherited a home, you may have a number of questions about selling your home. Need legalization? Can the house be sold without legalization or court approval? This article answers these and other common questions related to selling a home during probate.
What is succession?
First, it is essential to understand what succession is and when it is required. As part of estate planning, many people create wills specifying what they want to happen to their estate when they die. Probate is the process of “proving the will” through court proceedings. However, succession applies to intestate and intestate inheritances.
The probation of the will involves the court verifying that the deceased's wishes are being carried out and that the estate is protected. Succession requires that the distribution of assets be reviewed by a judge. However, there are many ways to distribute property after death without formal probate in the modern legal system. For example, you can distribute property without probate through joint tenancies, trusts, and other specific types of deeds.
How much should a property be worth for an inventory to be required?
In California, the gross value of the deceased's movable and immovable property is the determining factor. If the gross amount is less than $166,250, inventory is not required. However, if you want to take possession of the house, you mustcourt ordert be named as successor to assume title to the property.
The bad news is that there are very few homes valued below that dollar amount in California. The good news is that the value is adjusted for inflation every three years. Hethe next readjustment for inflation is expecteduntil April 2022.
Inventory and administration letters
If there is a will, the estate will need an executor. An executor is the person responsible for administering and following the terms outlined in the will. (If the person is a woman, she is called the executor.) Most wills identify who the deceased wants to be the executor of his or her estate. However, simply being named in the will is not enough. The person named in the will must appear in court for verification of the executor. Then the person named in the will must obtain a Letter of Will from the court for authorization. This “letter” is not really a “letter” but a form that the judge will sign authorizing the person to be the executor.
If there is no living will or trust, the estate is considered "intestate". A trustee, rather than an executor, oversees the estate when the estates are challenged. The trustee will need letters of administration from the court to administer the estate. Like the executor's letter, the Administrator's Letter of Administration is not a letter, but a standardized form. You can see an example here in thiscalifornia form, the checkbox for "Probate" and "Administration" (see image below).
Letters of Administration or Testamentary (California)
Responsibilities of the Executor/Administrator
Any candidate for the office of trustee or executor must provide a list of all heirs and beneficiaries as part of their application. If approved to be the executor, the executor must document all debtors, mortgage companies, insurance policies, and assets held by the estate. The executor will be responsible for paying the bills during the probate process. In most cases, utility bills and mortgages are paid from the deceased's estate. If in doubt, you should contact your lawyer.
Executors of the estate must also obtain copies of the deeds to any real estate. Depending on how the deeds are granted, probate may not be necessary. (see the next section).
The executor must compile a list of all debts and obligations that have not been paid by the date of death.
Here is a quick list of debts to look out for:
- property taxes
- State and Federal Income Tax
- Federal estate taxes: Please note that beginning in 2022, estates of less than $12.06 million are exempt fromfederal estate taxes.The amount is slightly lower than in previous years.
- funeral expenses
- medical bills
- Any other unpaid invoice
Additional reading:What to do if you inherited a house
How long does the legalization process take?
According toCalifornia Courts website, “The whole case can take from 9 months to 1.5 years, maybe even more.” However, properties with multiple business interests, copyrights, royalties and contested wills take much longer. Also, the process will take longer if the deceased's intent is not clear in the will.
Is probate necessary when a spouse or partner dies?
The answer to this question depends on how the property was owned or acquired. Acquisition is just another way of saying whose names are on the deed.
There are three common forms of real estate titles:joint lease.tenants in common. and community ownership.
Joint tenancy includes the right of survival. For example, when you buy your home, the title company will ask you how you want the title given. Typically, the home would be titled in both names as "joint tenants". For example, "Joe and Wilma Smith, as joint tenants". When property is titled as a co-owner, ownership automatically passes to the surviving spouse. No legalization is required. You may need to file a death certificate in county records. However, your title company or attorney will do this for you if you are selling the property.
tenants in common
However, probate may be required if the surviving spouse or partner holds joint tenant title. Common law tenants do not include the right of survivorship. Common tenants are similar to a business partnership. If a partner dies, the deceased's heirs, not the surviving partner, will inherit the deceased's share of the business. In the case of immovable property, the deceased's heirs (children, siblings, etc.) receive the inheritance if there is no will. Even if there is a will that transfers ownership to the surviving spouse, a probate will be required to verify the executor.
Furthermore, in California, the granting of rights ascommunity propertywith the right of survival is like joint tenancy. Property automatically passes to the surviving spouse or partner without the need for probate. The exception is property held in an estate or in a trust. Ownership in an estate or trust passes according to the documents in the estate or trust.
further reading:What happens to my mortgage when my spouse dies?
Transfer of property after death without a will
Property held in a trust or specific types of deeds can bypass probate entirely.
Avoiding Inventory with a Living Trust
The most common type of trust for maintaining a personal residence is a living trust. When someone wants to transfer property without court approval, they usually use living trusts.
Let's use an example. Dick and Jane want their children to inherit their family's home and estate. Dick and Jane create a living trust, naming Dick as trustee and their children as beneficiaries. As an additional step, Dick and Jane specify a successor trustee who will maintain the trust after Dick and Jane die.
The trust then specifies how the assets are distributed, including the family home. After Dick and Jane's death, the successor trustee takes over and begins fulfilling the obligations of the trust deed. After the trustee completes all conditions of the trust, the trust ends.
Revocable transfer in death deeds
“Deeds of Transfer Revocable on Death” are also known as “Beneficiary Deeds”. These deeds name a beneficiary to receive the property upon the owner's death. the owner of the propertyregister a revocable transfer in a death deedin county public records before his death. Then, when the owner dies, the beneficiary files an Affidavit - Transferor's Death with county records. Along with the declaration, the beneficiary also presents a certified copy of the death certificate. Beneficiary deeds are just one more way to transfer a home without probate.
If a homeowner wants to sell their home but retains the right to live in the home after the sale, they can build up a lifetime equity. Lifetime estates transfer ownership before death. However, unlike a traditional sale, the seller retains use of the home, after the sale, for the rest of his life.
Lifetime ownership conveys ownership of the property in a similar way to joint tenancy. When the holder of the lifetime estate dies, the successor presents a Sworn Declaration – Death of the Lifetime Tenant and a certified copy of the death certificate. Again, probate is not required to convey ownership.
How to sell a house during probate
Properties that are not in one of the above structures may need to be processed through inventory.
Typically, the court will order an appraisal of the home and a Realtor® to sell the home. Then, once the property is listed, the court must approve any accepted offer. The challenge is to get a court date for approval. Entering the courthouse calendar can usually add 30 days or more to the home sale. Fortunately, there is an alternative.
Proof of sale of your home without court confirmation
Generally, a will gives the executor authority to sell real estate without court approval. Suppose, for example, that the executor named in the will is accepted by the court. If the will specifies that court approval is not required, the court will likely grant full authority to the executor.
However, many states have also simplified the process of selling real estate without court confirmation. Several states, including California and Texas, allow you to apply for authority to administer your estate independently of the court. For example, in California, executors and administrators apply for their letters of administration to the court. When executors and trustees request these letters, they can apply for Full Authority (see image below). If granted, they can sell the deceased's property without court approval and save valuable time.
Can a house be pledged in probate?
The simple answer to this question is "yes". Just because the borrower passes doesn't mean the mortgage ends. If there is a mortgage, there is probably atrust deedrecorded in public records. If the mortgage is not paid, the trust deed allows the bank to sell the property at a foreclosure auction. Therefore, it is extremely important that the executor look for all loan documents for loans that need to be repaid.
In the event that several loans are found, the executor must seek their reconversion. The lender sends a conversion document to indicate that the loan has been paid in full. You can associate the rollover with any loan to find out which loans no longer need to be repaid.
The probate process can be daunting, but selling a home during probate doesn't have to be. If the surviving spouse or partner has joint title, the home does not need to go through probate. The same is true for living trusts and revocable transfer on death deeds. In addition, a will may provide that the designated executor must have the authority to sell the property without judicial oversight. If this is not the case, many states allow the executor or trustee to apply for full authority over the estate. If the court and the heirs do not contest full authority, the executor can proceed with the sale of the house. However, if the court has not given this authority to the executor, you must obtain court approval for the sale of the home.
Note: This article is not intended for legal advisors. For legal issues and opinions, consult your attorney.