We are often faced with selling property after an owner has died. Every situation
is different, but here are a few basics you should know. The following are
examples from the quickest and easiest sale of real estate after a death of an
owner to the more time consuming and difficult.
Joint Tenancy with Right of Survivorship
Property owned in joint tenancy with the right of survivorship automatically
passes to the surviving owners when one owner dies. No probate is necessary.
Joint tenancy can be used when couples (married or not) acquire real estate,
vehicles, bank accounts or other valuable property together.
Property Held in A Living Trust
A Living Trust is basically an alternative to a will for the property held in the Living
Trust. A decedent creates a Living Trust before death, just like a will. Title to
property is transferred to and held in the Living Trust and beneficiaries are
named. The creator of the trust is the initial Trustee and has the power to sell it
as the Trustee while alive. In the Living Trust document, a successor Trustee
would be named and the beneficiaries of the living trust are named. Except for
the Joint Tenancy with Right of Survivorship, this is the easiest way to transfer
property after death without the property going through probate court. No
probate, no court and no judges are involved. The property can be promptly
transferred to the beneficiaries. The Living Trust is becoming very popular, for
If Tom Thompson is the owner of property held in a Living Trust and he wants to
transfer it during his lifetime, he would execute a Purchase and Sale Agreement
as Tom Thompson, Trustee of the Living Trust of Tom Thompson. If there are 2
or more trustees in the living trust, both or all must execute any sale. The closing
attorney will request the living trust document and examine it prior to closing to
be certain the document includes proper authority to sell.
Property of a Decedent That Died With a Will
An estate with real property that is NOT a part of a joint tenancy or in a Living
Trust will have to be administered by the probate court or “go through probate.”
If the will names an Executor with expanded powers, including the power to
transfer real estate, then the Probate Court is petitioned by the Executor or
Executor’s attorney for a “Letter Testamentary.” When the “Letter Testamentary”
is granted, the Executor can legally sell the property as the representator of the
If an Executor is not named or the Executor was not granted the expanded power
to sell property in the estate, then the Executor has to petition the court for leave
to sell and the court then has to grant permission to sell. However, it can get
complicated. Before granting permission to sell, the court must notify all heirs or
beneficiaries and ask for any objections to the court granting an ability to sell to
the Executor. If there are objections, a hearing may be required. The Executor
cannot sell the property until the process has concluded. Obviously, the process
of obtaining court permission to sell in a limited power situation is time
consuming and expensive.
Property of a Decedent that died Without a Will
The proper reference for a situation of death without a will is that the party died
intestate. Georgia law controls the distribution to beneficiaries of an intestate
estate. The representative for the estate is called an Administrator. The probate
court names the Administrator, who performs the same functions as an Executor.
How long does all of this take?
Joint Tenancy with Right of Survivorship and Property Held in A Living Trust are
the quickest and easiest ways to transfer real estate. Assuming no
complications, property can be sold almost immediately with Joint Tenancy and
Living Trusts. Other property that goes through probate can take months to
years. If a seller comes to you with Letters Testamentary or Administrative
Letters already in their possession, you can list and sell right away. Otherwise,
count on a delay.
Note: Probate cannot be avoided entirely. Even if all of the property, including
real property, cash, stock and insurance policies, in an estate can pass directly to
the joint partner and beneficiaries, the probate court still requires that a will be
validated. The probate court must also approve any requests to avoid probate.
Moral of this article: Before you list and sell real property after an owner’s death,
be certain that the Executor or Administrator has the proper authority to sell in
the form of Letters Testamentary or Administration. If in doubt, contact one of
the Broker Team or your closing attorney!
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