Dealing with the Deceased: The Legal (Practical) Options for Selling Deceased Owners’ Property in Texas
This outline is intended for Texas realtors and real estate agents dealing with properties of deceased owners in Texas. This covers the real, practical, options for dealing with deceased property owners’ property ownership. While I will discuss the applicable law, the focus is on the practical steps you can take to get more probate real estate listings, deal with the family of deceased property owners before any legal steps have been taken, and deal with the family of deceased property owners after legal action has been taken.
.Someone calls for help selling a deceased property owner’s property… What do you do first?
a. Ask the family if they have completed probate or consulted with a probate attorney. Probate is the legal process of establishing the correct distributees of the deceased owner’s property.
i. If yes, ask them where they are in the process (more on that later).
ii. If no, suggest that they consult with a probate attorney. Suggest that they get a free consultation from a probate attorney in the area with a practice focused on Wills/Probate.
What are the legal options for dealing with a deceased property owner’s property?
a. Probate a Will.
i. If there’s a will, it must be probated. Probate of a will is the best way to vest the deceased person’s property in the distributees.
1. There are TWO types of probate:
a. Probate as a Muniment of Title only (we call this probate with no executor)
i. If probate was done as MOT, there is no executor, which means you should deal with the beneficiaries in the Will as your Seller.
b. Traditional Probate. If traditional probate is used, the agent will be dealing with the executor of the estate. The executor is not REALLY the executor until sworn in by the judge at the probate hearing.
i. If traditional probate was done, your Seller is the Executor of the Estate.
ii. If it’s an independent executor (most are), the court order or the will typically states that the executor can sell the real property without any additional court order
iii. If not an independent executor, the probate attorney will have to guide the sales process.
2. Probate is faster and less expensive than most people think.
a. Typical timeline (with a good, valid will) = 2-4 weeks. You CAN go ahead and get the property listed and readied for sale, but you can’t sign a contract with a buyer until after the probate hearing. So, try to get that probate hearing set ASAP!
b. Typical cost (again, with a good, valid will) = $1500-$2000
b. If there’s no will, “Affidavits of Heirship” may be appropriate
i. This is the easiest and least expensive option, but there’s a big BUT….
1. Title underwriters may not accept Affidavits of Heirship. So, find out before you do anything. You don’t want to have your client in breach of contract disputes (and angry with you) if the underwriters end up not accepting Affidavits of Heirship
2. This process does not require an attorney and does not require court.
3. Cost depends, but I estimate $250-$500 if I prepare the affidavits. They have to be filed with the county real property clerk.
c. If there’s no will, “Small Estate Affidavit” may be appropriate.
i. We almost never recommend the SEA when there’s real estate because the judge does not HAVE TO approve the SEA.
ii. This process is filed in probate court but does not require an attorney.
iii. Cost is $300 (if the family does without lawyer) to about $800 if they have a lawyer.
iv. Cannot sign contract on sale of the property until after the SEA has been approved by the Court (there will be a court order signed by the judge).
v. Even after the order is signed, run it by title before you advise your client to sign contract for sale.
d. If there’s no will, the gold standard is the Determination of Heirship.
i. This is a more lengthy probate court process.
ii. Attorney is required.
iii. Cost ranges from $3,500 to $4,500
iv. Process takes anywhere from 1-3 months (Dallas County longer, Collin County shorter).
v. A Determination of Heirship is a legal process in which the probate court judge will sign a “Judgment Declaring Heirship,” which lists all of the distributees of the deceased property owner’s property
vi. Most times when we do a Determination of Heirship, one family member will request to be appointed as the Administrator.
1. An Administrator is the same thing as the Executor.
2. See above for discussion on independent executor vs. non-independent executor
e. If the property is owned by a Trust, typically no probate required.
i. The Seller is the Trustee of the Trust.
ii. Best to have trustee consult with a wills/probate attorney to make sure that title company has all the paperwork they’ll need to close.
iii. Properties in trust are usually the fastest in terms of the legal process.
iv. Typical cost for getting paperwork to sell the real estate is $0 – $500
v. Typical timeline for getting paperwork to sell real estate 0-7 days
f. Other important note: Don’t be surprised if title asks for consents to be signed by all of the distributees, even if you have an independent executor or trustee. Title wants CYA. So, prepare your executor/administrator/trustee for the thought that they may need all of the distributees to sign paperwork in order to close.
How Can a Real Estate Agent Get More Texas Probate Listings?
a. Cozy up to wills/probate attorneys. I refer out occasionally, but would refer out more if agents were more facilitative.
b. Get creative with your value proposition.
i. If you have good contractors, tell the potential seller so. Make recommendations for fix up vs not fixing up. Get the costs nailed down. Get the timeline for fix-ups nailed down. Spoon-feed them.
ii. Offer to help with coordinating with estate sale company.
iii. Offer to help make referral to probate attorney.
iv. Picture yourself in the executor’s shoes. Remember, the executor does not usually want to come out of pocket because he’s not getting all the profit. He also doesn’t want to spend a ton of effort, because he’s got many other things to do and may not see a monetary benefit to spending a lot of time on it.
v. If they can’t find the heirs/family, use FIVERR and look like a rockstar.
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Free Consultation
To ask a legal question or get legal help from Texas wills and Texas probate lawyer Isaac Shutt, use the online contact form to the right or call (214) 302-8197. If you prefer to meet at the office in person, the attorneys will gladly offer a free consultation.
Visit www.ShuttLawFirm.com for more information on Texas Probate Real Estate Listings, Texas Probate, Probate Cost in Texas, or Texas Last Wills, contact Richardson Probate Attorneys Isaac Shutt at ishutt@shuttlawfirm.com.
Shutt Law Firm’s office is conveniently located just north of Dallas, Texas, and just South of Plano. The law office is near the intersection of highway 75 and Campbell Road in Richardson, TX.
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You can also call Mr. Shutt at (214) 302-8197 for more information on the topic discussed in this article or to discuss a different legal matter. For existing clients, quick phone-calls and brief e-mails are always free at Shutt Law Firm PLLC.
Please consider the Shutt Law Firm if you want to know about the Texas probate process, more about a Texas Last Will and Testament, or you need Dallas Probate Attorneys serving Richardson, Plano, Allen, McKinney, Garland, Addison, Rockwall, TX, Collin County, Dallas County, or surrounding North Texas area.
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DISCLAIMER: Nothing in this brief article constitutes legal advice. The information provided herein is merely provided in the spirit of education and is believed to be accurate as of the time it was originally prepared, and laws change. If you have a legal question, you should consult a lawyer for your specific legal situation. Further, nothing in this article shall be construed to have started an attorney-client relationship. No such relationship exists until both you and and an attorney at Shutt Law Firm sign an engagement letter.
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SHUTT LAW FIRM, PLLC
