What is Probate?
Probate is the legal process that you must follow to transfer or inherit property from someone who has passed away. Probate might be required to legally sell their home or pass on other assets to heirs. I meet with clients often who have a family member or friend that has passed away and they want to sell the home. If the title to the home is still in the deceased individual’s name, I will need something to show me who has the legal authority to sign the listing paperwork and sell the home. I met with someone recently and her father has passed away. She had been living in the home for the last year and wanted to sell it. Her dad’s name was the only one on title. He did not have a will and although she was the one living in the home, she has two sisters. Probate was needed for the court to determine who can legally sell the home and sign the listing paperwork. In that case, the probate court appointed her as the Administrator of the estate so she could legally list the home and it was determined that the estate assets would be divided among the 3 sisters. The Probate appoints an Administrator for the estate who has the legal ability to sign the listing paperwork and sell the home.
The Probate Process in Las Vegas
Losing a loved one can be a difficult time and many times the family doesn’t know where to start. You will need an original death certificate for the attorney and another one to provide to the title company when selling the home. Make sure you get multiple originals. If there is a Will it makes it easier but does not avoid probate. A common misconception is that probate applies only to those who do not have a will. In Nevada even if you have a will probate will still be necessary to sell the home.
Probate is time consuming and costly. It can easily to 6 – 8 months for a standard probate from start to finish. If there are complications it could be much longer. I have clients right now that an Administrator was appointed and then he passed away and a new administrator was appointed, and it was over a year before they were able to list the home for sale.
The Realtor’s Role in Probate Sales
Choosing a real estate agent that is experienced in Probate and has the tools to help with the sale can make all of the difference. Many times, the estate will need help making arrangements for the personal property in the home. I have many clients who need help with furniture, clothes and other personal items. Since Covid there are not a lot of great options for personal property. Over the last couple of years several of the consignment companies closed. Those that are still open are packed with items and very picky on what they will accept. There are several estate sale companies, and this can be a good option to sell a house full of items. There are also many online auction companies that will either do a sale at the property or purchase items that they will resale online. The administrator of the estate may live out of state. So they may rely on an agent to help make arrangements for items needed to prepare the home to list such as cleaning, painting or additional trash haul away.
Probate sales are more complicated than the typical real estate sale. It is important that you use an agent who like myself is experienced with these types of transactions and specializes in probate sales. As a Certified Probate Specialist, I have the experience, knowledge and tools to help clients with probate sales.
Having handled these types of transaction over the years, I understand the importance of communicating with the Sellers of probate properties and helping walk buyers through the process. I am happy to work with you also!
Avoiding Probate
How can you avoid the cost and time involved with Probate? Having a Trust is one of the best ways to make your wishes clear and avoid probate for your home and other assets such as bank account and investments. Once you create the trust, you are the trustee of your trust and you name someone to take over as Successor trustee upon your death. Then—and this is crucial—you must transfer ownership into trust. At your death, your successor trustee will be able to list and sell the home right away without probate court proceedings. I have had a client who had the trust completed and the title was transferred into the trust. They refinanced and the lender required the title to be removed from the trust. Unfortunately, they did not transfer back into the trust and probate was required.
Another Option is a Deed Upon Death. I generally do not recommend this option. I have had clients who had completed a Deed Upon Death. In this situation the deed is recorded on title and only becomes effective after the individual owner’s death. It is my understanding this is legal but in Nevada most title companies will require time frames before allowing the home to close escrow. They want to make sure there has been time from the death for creditors to file claims. This could be an option to avoid probate on the house but probate may be needed for other assets and there could be delays or problems still with selling. A trust is the easiest way to transfer assets upon your death. When I meet with clients who have a trust, I can list the home right away with the signatures from the successor trustee. I only need an original death certificate and a copy of the Certificate of the trust showing who the successor trustees are for the home. A trust can protect your assets from creditors also. I recommend talking to an attorney on what is best for your situation.
Selling a Probate Property
Selling probate property requires additional time frames. Once the probate court has appointed an administrator the paperwork can be signed, and the home listed for sale with a real estate agent and the administrator can accept offers. An accepted offer may require additional court approval. This can add additional time and offers will need to be made as contingent upon Probate Court approval.
Nevada passed the Independent Administrator Act in 2011. This act helps expediate the time frames to appoint a Personal Representative. Additional second court approval is not needed for the sale of the property. This is a big deal when selling the home as buyers are more likely to write offers and are not scared off by a required court approval of the sale. This helps expediate time frames and reduce costs.
In these situations, it is important to work with an attorney who understands all the options for the estate involving probate.
If you own a home or have assets that you want to transfer smoothly upon your death, I recommend meeting with an attorney to discuss options such as a Living trust to make it easier for your loved ones to carry your wishes when you are not around.
