Do You Need to Probate when Real Property is the Sole Estate Asset?
Although you do not need to probate or administer an estate when the sole asset is real property, you will need to satisfy a title company if you ultimately want to sell the property. Here are three ways to satisfy the title company.
Executor's or Administrator's deedThe best form of proof would be an Executor's or Administrator's deed. Obtaining an Executor's or Administrator's deed, however, would mean that Joe would have to file for probate or administration. Indeed, Joe would need to file a petition for probate or administration, obtain letters testamentary, or letters of administration, and then sign a deed and related tax forms transferring the property from Joe's parent's names to Joe, as Executor, or Administrator of the Estate. This can be a costly a process, and not ideal especially for Joe, who may possibly be the sole surviving beneficiary and executor.
Court OrderThe second form of proof can be a Court Order. When the sole property in the estate is a parcel of real property, the estate's personal representative can file a petition, pursuant to Article 19 of the Surrogate's Court Procedure Act, seeking court approval to sell the parcel. Filing an Article 19 petition would theoretically save Joe from having to file for probate or administration. It would also save Joe from having to transfer the property to the name of the Estate. Joe would, in lieu thereof, just file a petition for sale. If the Court granted the petition, Joe could execute one deed conveying the property from his parent's name to the purchaser.
Heirship affidavitThe third way to satisfy the title company would be with an heirship affidavit. Under this method, Joe, or a disinterested person that Joe knows, would write an Affidavit to the title company stating that Joe is qualified to pass valid title. This may pose the most risk for a title company because the Affidavit, while notarized, is not backed by a Court of competent jurisdiction.