Owner’s death may complicate but not stop home sale

A property owner dies in the middle of a transaction. The listing appears frozen, the closing date is suddenly uncertain and everyone assumes the sale will be tied up in probate for months.

Not necessarily. But agents should not try to determine on their own who inherited the property or who has authority to sign. The heirs — who may not be immediately clear — should get a probate attorney involved as soon as possible. A real estate attorney or title professional also may need to be brought into the transaction.

Real estate attorney Lew Oliver told Realtors® that a court can determine who has authority to sell a property before the entire estate is settled. How quickly the transaction can move forward will depend on the circumstances and how quickly the appropriate parties and legal professionals are brought in.

“In order to sell the property, you don’t have to complete the probate,” Oliver said at the recent Florida Real Estate Summit. He said the key is determining who has legal authority to sign the necessary documents.

The money from the sale may remain in escrow while creditor claims and other estate matters are resolved. But once the proper authority is established, a sale may be able to move forward even though the broader probate case continues.

The deed tells the first part of the story

The deed can provide important information, but agents should leave decisions about ownership and signing authority to the attorneys and title professionals handling the matter.

How the property is titled may reveal that ownership passes to a surviving spouse, a joint owner with right of survivorship, a life-estate beneficiary or a successor trustee. In those situations, a full probate proceeding may not be necessary to move the sale forward.

One document that will not save the transaction is a power of attorney.

“It’s durable right up until the moment they died,” Oliver said. “And it doesn’t work afterwards.”

Agents also should not accept a family member’s assurance that they have authority to sign, he said.

Homestead can rewrite the signing list

The person named as the estate’s personal representative may seem like the obvious signer. Florida homestead rules can produce a different answer.

If the home passes directly to certain heirs, the personal representative may not have authority to sign the listing agreement, contract or closing documents. A surviving spouse or minor children also may have rights that can't be eliminated through a will.

A property also may be placed under contract before the court has identified the authorized signer. Oliver said the contract can make closing contingent on probate advancing far enough for the title and closing agent to make that determination.

“Don’t be put off by the fact that it’s probate,” Oliver said.

The listing may have become more complicated, but it is not necessarily dead. The important thing is getting the right people and legal help involved immediately rather than trying to determine heirs, ownership or signing authority without professional guidance.

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