Selling a home still in probate differs from a typical home sale. The buying and selling agents need to understand probate laws, and both the beneficiary and the realtor must understand what is involved with selling an inherited house in probate. Working with a real estate agent who understands the probate process is imperative. Otherwise, the sale could be delayed or even canceled.
Probate is the legal process of closing a deceased person’s estate. An executor or administrator of the estate must pay all final debts, close all accounts and distribute assets. All of this must happen with the approval of the county courts where the deceased lived, or where they own property. If the person left a will, the executor must follow the person’s final wishes, assuming they are legal. If the person passes away without a will (dying intestate), the courts will assign an administrator to work through probate. The administrator may be a relative of the deceased person or someone the courts assign.
Did you know that there is a difference between an heir and a beneficiary? An heir is someone who is directly related to the deceased, such as their child. While a beneficiary is a person named in the will or trust and does not have to be realated to the deceased person.
Probate can become a lengthy process. An average Illinois probate lasts 6-12 months but can be longer if the estate is complex. Items that affect the probate process are:
With a will, the person names the beneficiaries of their assets. But without a will, the courts will distribute the assets, including property, according to Illinois intestate laws. These laws state who is to inherit the assets. The person’s spouse and children are first in line to receive the assets, followed by the other immediate family.
When selling real estate that is still in probate, you must first determine the rightful beneficiary of the property. The will must specifically state who will receive the house, and the courts must agree that everything is legal and no one is contesting this portion of the will.
Carrying costs are the monthly expenses that the executor pays until the house is fully transferred to the beneficiary. These costs may include mortgage payments, homeowners insurance, utilities, property taxes and any HOA fees. Once the transfer is complete, the beneficiary becomes responsible for these payments. If the beneficiary is not aware of the extent of these costs, they may try to sell the home quickly to get out from under these payments. Realtors must understand the importance of the burden when helping their clients.
It is important to understand if the executor and realtor must obtain specific court orders before the sale of the property. If the home is held between a husband and wife or joint tenants with rights of survivorship, you do not need a court order since the title will pass to the other person. That person may simply need to show the death certificate to the realtor in order to sell the property.
2 items to remember:
Once the courts have determined who is the rightful heir to the property, then that person must follow some basic steps:
As you can see, probate can be a lengthy and complex process. Whether you are an heir, beneficiary or executor, an experienced probate attorney can help you. When selling an inherited house in probate, the attorney can work with the realtor to ensure the sale follows all Illinois laws, making the process a bit easier for you. An experienced probate attorney can guide you through the process and answer any questions that may arise.
A probate attorney understands what paperwork must be filed with the courts before and after the sale of a house in probate. You need to follow the courts’ instructions so as not to cost more or incur any delays.
If you want to sell your inherited home that is still in probate, we will help you consider all options. Let the Estate & Probate Legal Group in Illinois guide you each step of the way. Contact us today at 630-864-5835.
AREAS WE SERVE: DuPage, Kane, Lake, Kendall and Will counties.
