We’ve been talking a lot about probate in anticipation of our upcoming webinar with attorney Pamela Hernandez. It’s a complicated topic, so it makes sense to spend some time on it. In this final piece on probate, I talked with Pamela specifically about how probate affects title rights and the important things that real estate professionals need to be aware of so closings experience minimal delays.
How probate proceedings might affect title rights
- Incorrect Legal Description in the court order
- Improper recordings after divorce
- Not giving proper Notice to Beneficiaries
- Not recording Disclaimers of Interest
- Missed Heirs or beneficiaries
The Legal Description
Just as it’s important for title agents to ensure the deed has the proper legal description, the same is true for court orders transferring title. Failing to check the legal description on all chain of title documents is one of the most common dangerous title practices that will lead to claims. The legal description is what matters most when transferring property, so if even one document is slightly incorrect, it casts a cloud on the entire title.
The impact of divorce on probate
Everything from the deed to the survey to the court proceedings from a divorce needs to be carefully examined for title defects. Divorces can complicate the probate proceedings. According to the Florida Probate Code, a divorce voids the provisions of a will that name an ex-spouse as the beneficiary of an estate. This is also true in California, Arizona, and other state probate laws. If you live in one of these states, the assets will be passed as if the ex-spouse has died before the testator (the one who made the will). The rest of the will is considered valid.
Intestate succession laws are vague regarding how a divorce may impact the transfer of property via probate. If the marriage wasn’t officially dissolved at the time of death, an estranged spouse still has a legal claim on the property.
In some cases, the judge presiding over a divorce will instruct one spouse to sign a deed transferring the property to the other. In a contentious divorce, it may be difficult to nearly impossible to track down and get the ex-spouse to sign even though there is a court order. Without this quitclaim deed from the ex-spouse, the home is encumbered and will delay any potential sale.
Notice to Beneficiaries and Disclaimers of Interests
By law, anyone who has an interest in a probate estate, either heirs or creditors, must be given proper notice. This is an important part of the probate proceeding. If a beneficiary rejects their rights to the property, a disclaimer of interest must be filed and recorded in the county records.
Missed Heirs or Beneficiaries
This is one of the most common title defects and eventual title claims. Scouring the public records won’t always show an issue like this, which is why it’s so important for homebuyers to have a professional title search done and review their title commitment and insurance policy to see what title claims are covered and which are considered exceptions or exclusions.
Who can sign the listing agreement?
This is the most common question from Realtors regarding probate that Pamela hears. There’s a common misconception that the surviving spouse, children, or other family members of a deceased homeowner have the authority to sign listing agreements.
That’s not the case.
Before anyone signs the listing agreement, Realtors should pull the vesting deed to ensure the person listed on the title is the one signing.
If not, probate will be needed, and the only person who has the legal right to sign documents on behalf of the decedent is the Personal Representative, also known as the Executor of Will.
Title Agent Tips during probate
Title agents need to be sure that if probate is needed, the personal representative has been properly appointed.
They’ll also want to ensure that Letters of Administration are recorded and title is transferred to remove the deceased person from the deed if needed.
If the Personal Representative needs to sign on behalf of the decedent, ensure that everything is done in the name of the Personal Representative of the estate of the decedent’s name.”
Some of the common requirements from underwriters related to probate include:
- Proof that the probate administration has been opened
- Affidavit of continuous marriage
- Death Certificate must be recorded
- Florida Estate Tax Form DR-312 to show the decedent’s estate doesn’t owe taxes. Other states may require tax exemption forms like this.
- Occasionally an underwriter may require the signatures of heirs, the personal representative, or other beneficiaries or reopen probate if it wasn’t originally executed properly
The magic words “survivorship rights”
Like court orders, deeds are legally binding documents, so the language applied within them matters. However, not everyone is aware of this when taking title to their properties.
Pamela mentions that one of the most common scenarios affecting title rights to the property is a joint tenant incorrectly assuming that they have the rights to use and dispose of the property they co-own with the decedent.
Unfortunately, if the deed was written with the default language of tenants-in-common with no mention of survivorship rights, the person left of the deed may not have full rights to the property. This means that in order to sell the home free and clear of any title defects, probate will be needed.
Adding the words “survivorship rights” to a deed titled to tenants-in-common is one of the ways to speed up or avoid probate. By adding these words to the deed, the share of the decedent’s interest in the property is automatically transferred to the other owner or owners listed on the deed.
Otherwise, as Pamela notes in the interview, probate will be needed before the property can be sold. This can set back a closing from anywhere to two weeks to months.
What should I do if probate is needed during a closing?
If a client discloses that a deceased person is listed on the deed after a purchase agreement is signed, contact an attorney like Pamela as soon as possible to begin the probate process. Depending on the type of property and if there are any creditors, it may be possible to continue with the transaction with minimal delays.
The best advice is to not be afraid to ask questions. Take the time to learn more about probate and encourage your clients to look into estate planning in order to protect their assets and their family’s interests.