When a person dies, the assets that she leaves behind become part of her estate. Unless she established a trust or performed another legal maneuver prior to death, then the estate must proceed to probate court. Probate court validates the estate or will -- if there is one -- and appoints an executor or administrator to distribute the assets. If the assets include real estate, then its sale usually must proceed through the court.
How Probate Works in Real Estate
The process begins when a judge reviews the deceased's will, or assets if the person died without a will. After the court approves the executor, then the executor can begin the process of selling the decedent's house. Executors often choose whether to hire a real estate broker to handle the sale. The executor has the right to determine a fair selling price, although that's subject to review by the court. The executor also notifies the estate's heirs that a sale is forthcoming. When a buyer comes forward, he presents an offer to the estate through the court, who must approve it.
Working With the Title Company
Some title companies may permit a sale to proceed without probate approval, although whether this can occur is subject to state law as well as the title company's own rules. To find out if the deceased's title company will permit such a sale, contact the title company directly. You should also strongly consider contacting an estate attorney who will be able to advise you with regard to your state's laws. Some sales do not need probate approval, according to Trulia.
If the home is part of a trust, then the court doesn't have to be involved. However, in this case the trustee is responsible for the sale and not the executor unless they happen to be the same person. A trust is a legal document that transfers ownership of a person's assets, which are then managed by a neutral third party called the trustee. When the person dies, the trustee will abide by the rules set forth in the trust. Trusts provide for named beneficiaries, so if the home is part of the trust then you -- as the executor -- don't have to do anything. The home's sale is the trustee's responsibility.
Things to Consider
Proceed very carefully if the person who died didn't leave behind a will, because each state has its own laws on how the decedent's assets must be administered. In many cases, assets are automatically transferred to the surviving spouse or children. Also, if the size of the estate is greater than $5 million, speak to a tax adviser. You'll need to figure out how to minimize the estate's tax consequences, and the expense of selling the home will affect the estate in a variety of ways. In general, speaking to an estate attorney is always a good idea, so don't hesitate to educate yourself on the laws of the deceased's state.