Download The Understanding Probate & Your Title Transaction PDF
Understanding Probate & Your Title Transaction
Everyone has a plan for their estate, whether explicitly written out or dictated by state laws in the absence of a will or trust. Understanding probate ensures that the will is valid, appoints the executor specified in the will, and oversees the executor’s actions.
Q. What does “probate” mean?
A. Without probate, no one can legally sell the property of the deceased. Probate identifies the authorized party to handle the property sale, thus enabling title/escrow to proceed.
Q. Can real property be sold while “in probate”?
A. Yes, however only after the probate case is filed and letters are issued. Before this, no one can act on behalf of the estate, meaning escrow cannot accept contracts and title cannot insure the property until the necessary probate documents are provided.
Q. What documentation does a title company need to close a probate transaction?
A. Generally, Lawyers Title requires the following for an estate:
- Certified copy of the Final Decree of Distribution; or
- Certified copy of the Order Confirming Sale in addition to the original Executor’s Deed; or
- Certified copy of the Letters of Administration or Letters Testamentary, in addition to:
- A letter from the probate attorney confirming that the Notice of Proposed Action was sent to all required parties, with no objections after 15 days; or
- Copies of the Notice of Proposed Action and waivers of the Notice of Proposed Action; and
- A letter from the probate attorney confirming no Federal Estate Taxes are due, or approval for an estate tax payment agreement by the Underwriting Department.
Q. What is the purpose of estate administration?
A. Estate administration serves five main purposes:
- Confirming the decedent’s death,
- Validating the will,
- Appointing a personal representative for the estate with the authority to sell property,
- Identifying the heirs and devisees,
- Settling creditor claims against the estate,
- Distributing the property.
Q. What is the difference between “Testate” and “Intestate”?
A. In a testate case, the will dictates who represents the estate. So in an intestate case, succession laws determine the estate representative, which is crucial for escrow/title to identify who can sign the sale documentation.
Q. What are the steps in a typical uncontested probate?
A. Generally, the steps are as follows:
- Death of the decedent,
- Delivery of the will to the executor or Court Clerk,
- Filing a petition for Probate of Will or Letters of Administration,
- Holding a hearing on the petition,
- Issuing Letters of Administration by the Court,
- Notifying creditors,
- Inventory and appraisal of the estate by an independent probate appraiser,
- Sale of real property, issuance of title insurance, and closing of escrow with proper probate documentation,
- Filing the Federal estate tax return, specifying “No Tax Due” or the amount due,
- Final accounting and petition for distribution,
- Final decree of distribution,
- Discharging the personal representative.
Q. If there is no will, how is the estate property distributed?
A. Sections 6400-6414 of the California Probate Code address intestate succession and distribution. These codes specify who is authorized to represent the estate for property transfers, affecting the title insurance policy and escrow’s ability to close. The distribution method is complex, so consulting a legal advisor for specifics on intestate distributions is recommended.
*** Understanding probate is important. Therefore to review specific state or local laws, please consult your local land title association. Information is deemed reliable but not guaranteed.
Download The Understanding Probate & Your Title Transaction PDF
For expert guidance as well as personalized assistance in real estate, reach out to Irina and Jeff Shoket. We are dedicated to helping you achieve your real estate goals with confidence in addition to making the experience rewarding. Contact us today!
- Phone: (805) 267-9171
- Email: jeff@shoketgroup.com
We look forward to assisting you with all your real estate needs in Thousand Oaks and beyond. Don’t hesitate to get in touch – your successful real estate journey starts here!
