Probate Process: Can I Sell Property If I Need to During Probate Process?
One fact that is not widely known is that most of the time when a person dies, their property must go through a process called Probate. This is a very costly and complex process. One of the main reasons for its price tag is the number of actions the Court must be involved with. To put it simply, the Court must approve most of the actions concerning a person’s property after they die. In this article, we focus on whether property can be sold after a person has died. This has a complicated answer. Maybe. The experienced trust and probate attorneys at Lee Kiefer & Park LLC can assist in selling property during Probate.
Lee, Kiefer, & Park, LLC, is a team of probate and estate lawyers. The firm is located in Las Vegas and provides legal services throughout Nevada. The attorneys are knowledgeable and reputable. Managing partner Kennedy E. Lee and partner Matthew W. Park have been listed as preeminent lawyers by the widely respected Martindale-Hubbell lawyer rating service. Each of the founding partners has been selected as Super Lawyers and Legal Elite. The attorneys received their degrees from well-respected law schools.
Petition to Sale
If it becomes necessary to sale assets of the estate during Probate, the personal representative must ask the Court for permission. To do this, a petition seeking confirmation by the court of the sale is filed. Some property can be sold without approval by the court. These property types include perishable property and other personal property which will depreciate if not disposed of promptly, property which will incur loss or expense by being kept, and other personal property that is necessary to sale in order to meet the family allowance. If heirs and beneficiaries feel that property needs to be sold for the benefit of the estate, or that property designated to be sold is not, they can petition the Court to order the property sold.
The petition must be accompanied by an appraisal of the property to be sold. All beneficiaries can consent in writing to waive the requirement of the appraisal. Generally, a waiver occurs when there are a small number of beneficiaries, no dispute exists, and everyone agrees on the terms of the sale. Written objections to the petition can be submitted to the Court after which a hearing will explore the objections. During the confirmation process, other bids can be submitted to the Court. The Court will take the highest bid.
The personal representative must provide notice of the time and place of the sale. This is accomplished by publishing an ad in a local newspaper, consisting of three publications of the newspaper spaced one week apart. This publication must occur before the day of the sale. In certain instances, the Court can waive the requirement if all beneficiaries consent in writing, the property has been listed publicly for at least 30 days, or the property is subject to a short sale. Many times, in larger counties, these publications are made in a legal newspaper.
If a sale is confirmed, the personal representative gives the property to the purchaser. See Personal Representative Post. A certified copy of the Order by the Court is recorded at the Recorder’s office in the county where the property is located. If there is a fraudulent sale, the personal representative is liable for twice the value of the property. Additional damages can be awarded as well.
No sale of property will be confirmed by the Court unless it is satisfied that the price offered is the fair market value. The Court will want to see that the appraisal has been done not more than one year before the sale. The property can be sold for cash or credit. If made on credit, the personal representative takes the note for the unpaid portion of the purchase price and a mortgage is taken on the property by the personal representative. If the purchaser does not hold up their end of the bargain, the Court can order a resale of the property. The original purchaser is then liable if the estate incurs extra expenses.
Multiplicity of Situations
Sometimes the Will directs property to be sold. Other times, authority is given in the Will to sell property. In these cases, the personal representative can sale property at a public auction or private sale. Notice to the heirs and beneficiaries does not need to be given. There must be a return of sales and Court confirmation. Title does not pass without confirmation. Any direction in the Will as to how the property is to be sold or what property is to be sold, the personal representative must follow them.
Personal representatives can enter into contracts with brokers and agents to sell property. Payment for these services is paid with proceeds of the sale. The Court will confirm the amount for services when confirming the sale.
Many times, property that is sold has a mortgage. If real or personal property is sold and has a mortgage or other encumbrance, the proceeds must be applied after necessary expenses first to the satisfaction of the mortgage. This action must be done quickly. The holder of the mortgage may purchase the property. Proceeds are a payment. If the sale of a security is authorized by the Will, it can be sold without notice. To sale other securities, permission must be given by the court. A hearing must be had and notice given.
The information here has barely scratched the surface of this topic. Many other rules need to be followed and understood. It gets complicated and we would love to assist you and your loved ones. Contact Lee Kiefer & Park, LLC, for a free consultation, either by using the online form or by calling 702-333-1711.