Selling Property With A Probate Involved

Thu, 05/13/2021 - 8:33am

In a previous Closer’s Corner we talked about what happens to a property when an owner dies without a will:  
www.texasnationaltitle.com/article/deathandsellingproperty

In this Closer’s Corner we are going to discuss the different kinds of probate and how they affect a real estate closing.  Obviously each probate can be slightly different depending on your specific facts but the options below will describe generally the things to know about selling property that is involved in a probate.  

The most common scenario one thinks about when they think “probate” is the scenario where the deceased person has a Will and someone has taken that will to the probate court in order to settle a deceased person’s estate.  In our examples below the deceased person is called the “decedent.”  

In this scenario the Will is submitted to probate with the intent of vesting an executor with authority to transact on the decedent’s behalf to settle their finances.  Assuming the probate judge accepts the Will the Will is then “admitted to probate” and the probate process begins.  The judge will issue what’s called “Letters Testamentary” which vest the executor with the power to act on behalf of the estate.  The executor is then charged with creating an inventory for the estate, handling the decedent’s affairs and then closing the estate. 

When a title examiner is reviewing a probate they look to find the following items for closing: 

  1. Appointment of an independent executor; 
  2. The Will must give the executor the power to sell property; 
  3. Letters Testamentary must be issued; and 
  4. The estate Inventory and Appraisal has been filed with the court. 

In most cases if we have all four of these items we can have a fairly easy closing.  

Where closing can become more complex is when there is an issue with one of the items below.  Common examples that can delay closing are: 

  1. The Will does not appoint an independent executor, but instead appoints a dependent executor.  When a Will appoints a dependent administration that means court approval is required for every step in settling the estate, including the sale of real property.  
  2. The Will may not give the executor (independent or dependent) the power of sale. This means a court order to sell may be required. 
  3. The Will fails to identify an executor at all.  This means that an “administration” must be requested from the court which generally results in a court order being required for every step of the estate administration.  
  4. Letters Testamentary have not been issued which generally means closing must delay until the probate has moved further along.   

Any one of these issues can throw a wrench in a property getting sold timely.  

What should a realtor do when you know there may be probate issues? 
Working with a knowledgeable title company is the key to success!  These issues are ones that can be resolved as long as your file is in the right hands.  The best thing a realtor can do is (1) select a closing team at Texas National Title to close the transaction and (2) be available to help us walk the family through the necessary steps to get to closing.  There are many tasks that must be done to get to closing and often times the clients need our support and guidance in getting the necessary documents completed.  Our escrow teams and legal departments are experts in handling complex estates issues and we are here to help you get your deals closed.