Title and Probate: Planning Ahead

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Real Estate

Because the notion of going through probate can be daunting, it’s as good a time as any to review how title companies work with the heirs of property to ensure that the plans and transactions desired by both the decedent and his/her heirs are best accomplished.

The simple fact is that, when it comes to passing on property after your death, everyone should have a plan. If you own property in joint tenancy with someone else, or in a living trust, it will not have to go through probate.

If you have a will - or if you are intestate, meaning you don’t have a will, according to California law - your estate must go through probate if you are the property’s sole owner or own a separate, undivided interest in the property.

The question often arises, “Can the property be sold while it is in probate?”

The answer is “yes,” either at a private sale in which the executor of the estate negotiates a transaction with a buyer, or at a public sale where the property is sold at a public auction.

In all such cases, the first question a title company will typically ask is if authority to administer the estate has been granted under the Independent Administration of Estates Act. Depending on the answer, the title company will request specific information and documentation and without it, the property cannot legally be transferred.

If you have a will, and authority to administer has been duly granted, the title company will request, at minimum:
- A copy of the above authority
- A copy of a Notice of Proposed Action as required by the probate code along with evidence that such notice was mailed or delivered
- Evidence that no objection to the Notice of Proposed Action was received prior to closing
- Evidence that any owed state or federal taxes have been paid 

If there is no will, and authority to administer has not been granted, the information requested will include, at minimum:
1. A certified copy of a final, unappealable order confirming the contemplated transaction is recorded in the public record
2. Evidence that any state or federal taxes have been paid

Settling anyone’s affairs after their death can be a long and wearying job. Rest assured, I, together with our title company, will work with the heirs of the deceased, and their attorneys, to make sure that a proposed real estate transaction is insurable, and that the transaction runs smoothly and closes on time.


You might also enjoy reading:
Probate Versus Living Trust
Transfer-on-Death Deeds: An Update
Types of Property Ownership and the Transfer of Title

Source: RISMedia