With Care And Concern
By Stephen C. L. Chong, Esq.
2019 Real Estate Legal Summit Presenter
“Probate”
Unfortunately, at some point you will likely
have a client who is trying to deal with
the death of a loved one. When this
occurs, the settlement of the estate is an
unavoidable process. During this time, your grieving
client and their family will need to rely upon others
to help walk them through the inevitable decisions
that need to be made to gather the assets of the
estate, pay the decedent’s creditors, and distribute
the balance of the assets to the beneficiaries.
An attorney should certainly be involved, and a
knowledgeable real estate professional plays a
key role as well.
This article will briefly guide the real
estate professional through the process so
that, in turn, he or she can guide a client
through the same process.
First, there will need to be an assessment
of the amount of real property owned by the decedent.
There will oft en be a residential home, but there could also be
investment property as part of the decedent’s estate. The deeds for
each of the properties will need to be reviewed by an attorney, with
careful consideration of how title is held, whether it constitutes the
decedent’s homestead, if there is a surviving spouse, and if there
are minor children. Based on the foregoing, decisions can be made
about the steps needed to clear title, sign a listing agreement, contract
for sale and purchase, and closing documents.
If one of the properties is homestead, a judicial determination
is oft en recommended to resolve the ownership. This clarifies the
parties who will be able to sign a listing agreement and sale documents.
However, the process to receive homestead determination
can take four to six months, so no one should be moving to sign a
listing agreement or contract too soon.
Further, depending on whether the decedent had a will or
trust, it may require that a Personal Representative be appointed
to sign a listing agreement or contract. This process may take 30
days. Hence, the real estate professional should encourage the
family to hire an attorney as quickly as possible to get the process
started. Once the estate is opened and a Personal Representative is
appointed, then that person can start making decisions and signing
contracts on behalf of the estate.
It the properties are owned by a trust, the trustee(s) can typically
sign any documents on behalf of the trust, such as
a listing agreement and
contract for sale and purchase.
However, the terms
of the trust may need to be
reviewed by a real estate attorney
to verify that the trust
has the power to hold and
sell real property. Likewise,
some trusts may require that
beneficiaries sign all contracts
as well as the trustee.
If properties are owned with
others, such as joint tenants
with right of survivorship,
tenants in common, or tenancy
by the entireties, the surviving
owners and the Personal Representative
may be the proper
party(s) to sign a listing agreement
and contract for sale and
purchase. These situations should
be reviewed with an attorney to be
certain. Further, if the decedent was
survived by a spouse, elective share
may need to be considered prior to
finalizing any sale.
These situations require a working knowledge of the variables
that can occur and the need for professional advice and counsel to
be certain title is clear and the proper party signs the listing agreement,
contract, and closing documents. Using a knowledgeable attorney
and real estate professional in tandem can save the family a
myriad of headaches, time, and missed opportunities, and provide
everyone with peace of mind in an otherwise traumatic experience.
> Stephen C. L. Chong, Esq., Mateer & Harbert, P.A., will be presenting “Probate” at
the 2019 Real Estate Legal Summit on September 5 (visit orlandorealtors.org to
register). He can be reached at schong@mateerharbert.com.
Utilizing an attorney and real
estate professional in tandem
during the settlement process
can provide comfort and peace of
mind to a grieving client
INTERNATLIOENGAALL
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