When a loved one dies, a typical estate often consists of a house, some small bank accounts, an IRA or 401(k), maybe a vehicle, and tangible personal property. For many people, the biggest asset they own is a house, and a house can pose the biggest challenge for a small estate.
This articles takes a short walk through the details of selling the house of a deceased loved one and breaks down the process with some suggestions for the person who takes on the responsibility to handle those final affairs.
Houses that have been in the family for a long time often carry some emotional attachment along with the personal property inside. After sifting through the personal property, distributing the property that heirs want, selling property that has value, and disposing of the personal property that has little or no value, the house is usually the last thing that needs to be handled. Unless a Will or Trust directs the house to be distributed in kind, or to be kept for some length of time, the house usually is sold.
The first thing to be addressed in selling a house left by a deceased family member is identifying who has the legal responsibility to handle the transaction. If the owner left a Will, the Executor is the authorized person. If the house is in a Trust, the Trustee is the authorized person. If there is no Will or Trust, someone must step forward and take responsibility.
Without a Will, the authorized person is the person who files a petition to open up a probate estate, volunteers to act as the Administrator of the Estate, and obtains Letters Testamentary (authority from the Court) to handle the affairs of the Estate. Even with a Will, the named Executor only has the authority to act after the Probate Estate is opened and Letters Testamentary are issued. Third parties (like banks and other people) will not communicate with a person who does not have clear authority to act for the deceased person (the Estate).
There may be other alternatives to opening up a Probate Estate, but the alternatives depend on the specific and unique facts and circumstances and the ability of the family to get along, act in concert, and coordinate their efforts. Alternatives can be explored with an experienced attorney. Typically, however, the Trustee, the Executor (if there is a Will) or the Administrator (if there is no Will) acting with Letters Testamentary will handle the sale of the house.
Estates should not hold on to houses for too long, as insurance companies often do not want to insure houses that are empty. Houses should not be left empty and unattended for any length of time for the same reason that insurance companies do not like insuring them. Renting out the house is often more than an executor, administrator or trustee wants to handle. Sometimes family members want the house, or to rent it (or even to live in it for free). Dealing with a family member until it is sold can work, but other issues often arise that add complication to the task of handling the Estate when family members want the house.
Whenever real property is sold, buyers will require title insurance. When the owner of the house has died, the requirement for title insurance is even more important, as there are potential claimants of the Estate, heirs or other interested parties who have or may have an interest in the house. Those estate issues will be handled through the administration of the Probate Estate, but title insurance is still required, and those estate issues will need to be addressed satisfactorily to induce the title insurer to issue the title insurance policy.
With the Probate Estate, there are notices that must be sent to known creditors and known heirs as well as notice to be published in the paper for unknown creditors and unknown heirs. These notices are followed by a 6-month claims period (which can be shortened by the mailing of actual notices to specific creditors and heirs). Even while the claims period is still pending, real estate can be sold, though distribution of the net proceeds is usually withheld until the claims period ends.
All of the usual considerations in the sale of real estate apply equally to the sale of real estate when the owner is deceased. Other than the title issues related to the death of the owner, there may be title issues related to encroachments, easements, mortgages and other encumbrances, and even environmental concerns. The home may be in some state of disrepair, which is not uncommon when an elderly owner passes. Some consideration should be given to performing those repairs or being ready to give credits to a prospective purchaser for the repairs that need to be made. Most standard contracts make provision for home inspections, and some negotiation is likely to take place when the home inspection reveals the need for repairs.
A common situation over the last six to seven years is real property with a mortgage that exceeds the value of the property. This situation can pose a dilemma for an Estate. If the real property has been left to specific individuals, the specific individuals may not want the property. They can disclaim their interest in the property to avoid taking title to property that is “underwater”; however, the Estate as a whole does not have that luxury. If there are other assets in the Estate, a mortgage lender has the right to file a claim for any short fall between the value of the property and the mortgage. The lender can also foreclose on the mortgage. These issues can be complex and difficult to address and will require the help of an experienced attorney to sort through.
For most estates, this will not be an issue. Maximizing the value of the property to sell may require some repair, improvements to enhance the value and removal most of the tangible personal property so that the house is not cluttered. Houses are likely to need a thorough cleanup to put the house in the best shape to receive the most value for the property that is available. Having a good realtor who can make recommendations in regard to the types of things that should be done that will generate the highest enhancement in value and salability of the property is strongly advised.
One other issue that can arise in regard to the sale of the home of a deceased loved one is determining the target value of the house for sale. Of course, a realtor can help in regard to valuing the house for listing and for a minimum realistic sales price; however, heirs and family members may have expectations that are different than the opinion of the realtor. Often those expectations are unrealistic, though they should not be dismissed. Maintaining good communication with the family and heirs can do a lot to alleviate the problem of dashed expectations and second guessing.
Persons handling estates often fail to communicate adequately because of a number of factors. In our experience, the lack of communication causes far more problems than candid and full communication. The realtor’s opinion should be communicated, preferably with a copy of the realtor’s opinion in writing. If people are not happy with the realtor’s opinion, a second opinion can be obtained. A more formal appraisal can also be obtained, but it will cost the estate money.
In the end, if disagreement remains, then filing a petition with the Probate Court may be the best option. Let the judge make the decision regarding the value. The judge will most likely go with the opinion of the real estate agent, but presenting the issue to the judge takes the heat off of the Estate Representative. Once a court order is obtained allowing the property to be sold within the parameters of the opinion of the real estate professional, the matter is resolved.
A house is often the most valuable asset, or one of the most valuable assets, of an Estate. A house can also pose some of the most significant challenges to someone handling the Estate of a loved one who has passed away. That chore is made easier by making good use of professionals, including attorneys and real estate agents, and dealing with the house in a systematic, open and deliberate way. No obstacles are insurmountable with some diligence and focus on the end game, which is to get the house sold and to distribute the net assets to the people who are entitled to them.Kevin G. Drendel Drendel & Jansons Law Group 111 Flinn Street Batavia, IL 60510 (630) 406-5440 (630) 406-6179 fax [email protected] foxvalleyestateplanning.com