Can i sell my deceased mothers house before we start probate since we have a buyer?

Asked over 4 years ago - Sandusky, MI

we put my mothers house up for sale before we started probate and she was the sole owner. We did this because we had to pay for her funeral as soon as possible as we dont have the money to pay it.
We have a buyer, and want to sell now, so we dont lose the buyer.
Is it legal to have the title company (or someone else) set up an escrow account with the money from the sale until probate is final?

Attorney answers (4)

  1. James P. Frederick

    Contributor Level 20

    Answered . I am also surprised that a realtor would even list the property, under the circumstances. You will not be able to sell the property without starting probate. The good news is that probate can be opened and you can have legal authority to sell the property in one day, for most cases.

    The cost to open an estate will be $150, plus $12 for each certified copy of your Letters of Authority. You will need at least one letter to provide to the title company. You will need to decide between the parties who will prepare the Deed from the estate, (which will need to be signed by the Personal Representative). The title company may be willing to prepare the deed, for a relatively nominal charge.

    There will be additional costs, associated with the probate estate, such as a publication charge to notify creditors, (which is about $70), and the Inventory fee, which is based on a percentage of the value of the assets in the estate. These costs are not due immediately, but the proceeds from the sale of the home should be placed in an "estate" account, until you are sure that you have sufficient resources to cover all of the administrative expenses, including any creditor claims that may arise.

    Please feel free to contact me if you require any assistance in opening the estate.

    Best of luck to you!

    James Frederick

  2. Carol A. Morris

    Contributor Level 11

    Answered . NO. The person who signs the deed convey the property needs to have the proper authority. Though I have seen title companies do it and later correct the error -it is not legally correct. You need to start open the probate estate immediately. Start at the probate court in the county where your mother house is located.

  3. John J. Sullivan

    Contributor Level 14

    Answered . I'm not licensed in MI, so I can only comment in general terms.

    I'm surprised the realtor was willing to sign a listing agreement with you before securing authority from the court to act for the estate, unless you are operating under some MI small estate summary procedure. I do not believe you can even enter into an enforceable purchase and sale agreement. Where I expect you will run into a roadblock is with the title insurance company for the buyer or the buyer's lender. Unless you are able to convince title to insure around the lack of probate, with a no probate affidavit and payment of an additional premium for a rider, I think the deal will come to a screeching halt until you secure authority.

    Why are you hesitating? How long does it take to get in and probate a will and get the court to issue Letters Testamentary (or whatever the badge of authority is in MI)? Here in WA, we could turn that around in a day or two at most, assuming you are named in a vaild will that provides for no bond. You should get in to see a competent local probate attorney to set you up and secure authority to sell the house if necessary.

    Most funeral homes will work with you and wait to get paid from the estate.

  4. Janet Lee Brewer

    Pro

    Contributor Level 17

    Answered . Sorry, but I doubt the title company will do that ... the probate process gives the title company the legal proof that you are entitled to sell the property. If they were to allow you to sell the property and you didn't have the legal right to do it, then the buyers would sue everyone in sight, including the title company.

    You cannot sell the house until you have "evidence of good title". The executor of your mother's estate can sell the house during probate OR all of the heirs can sell the house after probate is finished - but no one can sell the house until an executor has been appointed or the probate has been completed.

    If someone has not already been appointed as the executor, you need to get that taken care of immediately. In some states (like California), you can get a "special administrator" appointed on an emergency basis. Check with a competent probate lawyer to see if that's possible in this situation.

    The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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