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Does the sale of Real Estate have to occur before before Probate estate is Closed?

Buffalo Grove, IL |

My wife is the executor to her dad's estate which includes a house. The probate accounting is scheduled for December '09 but the home has not sold yet.

Do we have to continue the probate case or can we close probate and continue to try and sell the home.

She is not on the deed but is an independent executor for the estate. If we close probate does her authority continue or do we have to transfer title to her name?

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Attorney answers 3


Generally, my practice is to keep probate open if the estate has not been open several years. Judges generally do not have any issue with continuing the matter for status on the Final Account to allow real estate to be sold by the estate. Otherwise, the estate's interest in the real estate can be released to the heirs or devisees and sold by them, but that sets up common ownership that can lead to disagreement, possibly insurance questions that may not currently exist, etc.


There are several key facts which are not included in your summary. To answer your direct question, if the estate is closed, then your wife would no longer have legal authority to sell the property. Whether or not the property should be transfered out of the estate to the beneficiaries depends on a number of issues.

If it is relatively inexpensive to keep the estate open, then there is probably no pressing need to change things. As the first respondent noted, there are potential problems that could creep up, if the individual beneficiaries own the property and need to work together, but cannot or will not do so. If there is only 1 or 2 beneficiaries, then this is probably not much of an issue.

I generally prefer to transfer title to the beneficiaries in situations like yours. There is no need for them to continue to pay me and the court extra costs, to keep probate going. That is especially true given the current real estate climate, where it can be extremely difficult to sell real estate.

James Frederick


In Nevada and most places you may close the estate and continue to try and sell the property. You will need to transfer the property because it will no be in the name of the estate it will be in the name of your wife.

the is just general advise and not a meeting with a lawyer so he may apply the specific facts of your case are developed. Web surfing is no substitute for legal counsel.

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