Lack of Probate Affidavit

Selling a property when a vested owner is deceased and there is no probate requires additional information in order for a title company to insure the sale.

A Lack of Probate Affidavit is the first item a title company will require.  This is usually completed by the surviving spouse, children or parents of the deceased party, depending on the situation.  This provides the title company with the information that is typically addressed and submitted in court had a probate been opened.

The affidavit asks for the following:

1.)  A list of the heirs.  This is in part so the title company has an idea of who and how many heirs will be required to execute on the Deed.

2.)  An estimated value of the estate.  This provides a determination if any inheritance tax may be due and become a potential lien on the property.

3.)  Confirmation of any State tax due.  This can occur, for example, if the deceased received State assistance through Medicaid due to an illness or disability which could potentially become a lien on the property.

4.)  A copy of the will, if there is one, to assist with identifying any heirs or specific devisees of the estate.

5.)  A copy of the death certificate for evidence of death.

Ideally the listing broker, heirs, and the title company should be having a conversation as early as possible in order to determine who will be required to execute the Deed.

A non-probated estate provides some additional risk to the title company in the event an heir, after the sale of the property, claims an interest in the property.  This would be avoided if the estate was probated because the court would determine who has authority to execute documents on behalf of the deceased party.  This protects all parties from any post litigation and potential law suits.