Q: Probate closed on moms estate over 3 years ago. We pay mortgage under her name. We close on a sale of home this month.
How do we pass the deed to the new owners? Mortage will get paid first. We own the house but couldnt put our names on the deed till we pay mortgage off.
A: If the deed is still under her name then only the Personal Representative of her estate can transfer the property. Depending on several factors the Personal Representative may first need to petition the Probate Court to obtain a License to sell the property.
A: Title to real property descends to heirs or devisees upon death. Its very important to hire an attorney now to make sure the probate process was completed three years ago to show that either the heirs or the devisees have good title to convey at closing. If the probate estate is still open, the Personal Representative might have the power to sell contained in a Will, but if the estate is closed the power to sell is in the heirs or devisees. Don't forget to start asking now about the income tax consequences of a sale so there are no tax surprises.
A: If the Personal Representative was represented by counsel, the attorney would have prepared a Deed of Distribution to either the intestate heirs or the devisees under the Will subject to the mortgage. Otherwise you pro se or through your own counsel or through the attorney handling the closing for the buyer would need to prepare and execute same. Also, there is the issue of whether there was a recorded affidavit of no estate tax due, etc.
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