An individual will generally leave their last wishes in a will that they created with a lawyer. However, family members and probate courts in New York may interpret things differently. Estates of any size can run into road bumps; it’s not only estates worth millions or more.
When it comes to selling a house in probate, the rules and requirements can be confusing. Whether the government is forcing a sale or the family of the deceased property owner wants to move the process along, here’s what you need to know about the documents required for selling a house in probate.
Process of Selling a House in Probate in New York
A house that was not bequeathed to an heir by the decedent becomes a probate sale candidate. Properties that remain in their name also must go through the courts. Several steps are involved in this process, including:
- Assign an executor of the estate
- Assess the property’s value
- Hire a real estate agent
- List the property
- Field offers
- Present the approved offer to the court
- The court fields additional offers
- A letter goes to the family
- The house is declared sold
Steps to Selling a House in Probate in NY
Selling a house in probate in NY is a bit different than in other states. Each jurisdiction has specific rules and laws. For example, in New York, if the decedent’s personal property totals less than $50K, you can file a different type of proceeding than for higher-value property.
In any case, though, a professional executor is a certified, licensed, and knowledgeable person who knows the ins and outs of probate litigation and will contests. This representative can come from a law firm. Experience in estate assets and estate administration is preferred.
It’s possible for any person to be an executor if the decedent’s will, based on the decedent’s wishes. But legal professionals emphasize the importance of hiring a qualified professional because they prevent mistakes and delays in the process. The court has the right to assign an executor, too.
Home Prices in Probate Sales
A house sold according to probate law is similar to an auction. The real property will not sell at market price or above it, making assessing the house’s value essential. Next, it’s time to hire a competent real estate agent.
Probate Sale Offers
Ideally, the agent will be knowledgeable in the probate process, too. The agent and the executor can field offers. Only offers with at least an up-front, 10% deposit of the home’s value are acceptable. This does tend to attract real estate investors who are searching for bargains.
The agent is tasked with announcing the sale of the home and marketing it. It’s a good idea to double-check that they are going to do the leg work. Otherwise, you are left with this job.
An approved offer must be presented to the court for evaluation. Then, the court allows anyone present in the court to submit a better offer. This offer must be at least 5% above the pending deal.
Court Approval
When the court and executor approve a deal, a Notice of Proposed Action is delivered to each of the estate’s heirs. The heirs receive 15 days to object to the offer. Otherwise, the deal goes through. Once all paperwork is settled and finalized, the beneficiaries receive their inheritance.
What Documentation is Needed to Sell a House in Probate?
Selling a house in probate requires several documents. Among the most important are:
- Proof of ownership
- Power of Attorney
- Old title report
- Current title
- Certificate of death
- Will
- Letter from Surrogate’s Court declaring the Executor or Administrator
- Document on violations and liens
The house is going to be sold as-is. Potential buyers are made aware of this, which prepares them to budget for potential upgrades and repairs. In typical New York home sales, the seller is asked to provide a Lead-Based Paint Disclosure document and Property Condition Disclosure Statement.
In most cases, violations and liens must be revealed to the potential buyer. Some violations must be cleared up before the sale goes through. If liens or other outstanding debts exist, they are paid with the sale’s proceeds. What is left gets divided up among the heirs.
The legal documents establish that the family has the right to sell the home. You should be prepared to discover at least one surprise during the probate litigation. It could turn out that the home is actually underwater financially, and therefore, does not have much equity of value, which quickly drains a bank account.
The title may not be valid in other cases. The title company must run a background check on the property, which is why the process takes longer than most would like.
How to Resolve Disputes When Selling a House in Probate
It is not uncommon for probate court proceedings to get messy. Given that this sale takes between 18 months to 36 months to finalize on average, you and the other heirs may get antsy. Disputes occur when there are several beneficiaries, but they can also occur between two. The good news is that there are ways to resolve disagreements, such as:
- Mediation
- Asset liquidation
- Hire an independent fiduciary
Everyone involved has their reasons for seeking a particular price, timeline, or buyer. Disputes are more difficult when there is sentimental value involved because there is almost no way to place a price on it. Since a third party has no sentimental attachment, they offer you and the others viable solutions.
There may also be beneficiaries that are not interested in selling the home. This could result from sentimental attachment to the property. In other situations, one or more beneficiaries, such as the surviving spouse, may live in the house. Thus, they would lose their housing.
A sibling rivalry can also lead to estate disputes. Proper estate planning helps prevent these situations from occurring or at least lessens the disputes.
- To get over these humps, consider the following:
- Buy out the beneficiaries who reject the sale
- File a Partition Action to force the sale
Engaging a mediator is more cost-effective than taking on an additional legal battle. Plus, it prevents a rift between family members. When things get heated, it’s worth involving a neutral third party in many cases.
You might consider dividing household items, too. A formal agreement allows you to keep the items that have sentimental value. If a dispute arises during the dividing process, have the items appraised. Then, everyone can equally receive items based on their value. If this solution still poses a problem, the next best compromise is to liquidate all the assets along with the property. Then, divide the proceeds equally among all the members.
Fiduciary representatives are personal representatives who are obligated to fulfill their duties according to the will’s wishes if the deceased left an estate plan. The attorney-client relationship is sacred.
When disputes arise, it’s best to hire a third party or a probate attorney instead of someone who is a longtime family friend. Your family may have a lawyer who has handled all the affairs. However, if disputes arise to achieve maximum fairness, it’s best to go with someone independent.
Legalities of Selling a House in Probate
There are several legalities tied to a house that must be sold in probate. The courts are tasked with reviewing all documents, petitions, and related paperwork to prevent fraud and undue influence. If the home’s title is signed over to the beneficiary before passing away, probate is easier.
A loved one can still object to the will and attempt to keep it for themselves. The situation becomes more complicated when the title was not reassigned before the loved one passed away.
New York legal professionals tell stories about clients who attempt to sell the home before the court approves the sale. All it does is delay the proceeding, which slows the distribution of the inheritance.
If you are facing this situation, it makes sense to petition the court and open estate litigation to proceed as soon as possible. The executor and court must find all family members related to the decedent. Without the court, actions on the will such as a home sale can only occur if every member agrees.
Any violations and fines stemming from the property must be cleared and paid. If tenants are residing on the property, file for an eviction. Once a buyer is approved, the title will be updated. Then, you will hand over the keys and provide Letters of Administration.
Conclusion
Selling a New York home in probate is a paperwork-intensive process. From start to finish, it can take 18 to 36 months or longer, in some cases. Some courts are more efficient than others, so you are encouraged to exercise patience. Be as organized as possible, which helps prevent delays.
Documents you need include the title, court petition, and will. If disputes arise among the beneficiaries, productive problem-solving solutions exist, such as mediation and offering a buyout. Remember to follow probate law, which prevents delays.