The seller is deceased. What happens now?
First we need to determine if there is an open probate. Part of the process of preparing the title commitment includes running the seller’s name, looking for any possible probates, and other matters. If a probate has been opened, the commitment will contain a paragraph stating who was appointed as the Personal Representative.
This paragraph will also state if the estate has been granted non-intervention powers to sell and convey property or if a further court order authorizing the sale of the property would be required.
If a probate has been opened in a different country than the property location, it would be necessary to advise us of where the probate proceedings are taking place.
If the estate is not being probated, then a Lack of Probate Affidavit will need to be completed by the surviving spouse, children, or parents of the deceased party depending on the situation.
The Lack of Probate Affidavit asks the following:
1.) A list of the heirs. This is in part so the title company has an idea of who and how many will be required to execute on the Deed.
2.) An estimated value of the estate. This is to obtain 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 to specific devisees of the estate.
5.) A copy of the Death Certificate for evidence of death.
Ideally this is dialogue the listing broker, heirs, and the title company should have as early as possible to determine who will be required to execute the Deed. A more viable option could be to open probate.