Q: Can we use "small estate" probate after my mother died without a will?
My divorced mother died intestate, and my sister and I are her only heirs.
We have obtained her credit reports and determined that aside from one small collection, her only debt is the mortgage to the home we would inherit jointly had she made a will, as that had always been her intent. There is also a car, but it is paid off.
Minus the encumbrance of the mortgage, her total estate is well below $100k.
However, my sister met with a lawyer who seemed to be under the impression that because the home's *absolute* value is over $100k, that even if we settled all her debts and worked with her lender to get the mortgage in our names, we would be ineligible to file for "small estate" probate after 45 days.
I am confused because ACA § 28-41-101(a)(3)(A) says "value, less encumbrances" and "at the time of death".
Edit to clarify: we have no intention of selling the property but is attorney #1 saying we could *never* sell it, even after current mortgage is paid???
A: If the mortgage is your mother's only debt and the value of her estate after the balance on the house note is subtracted equals $100,000 or less, then you should be able to file the small estate affidavit. However, be aware that if your intent is to sell the home, most title companies will not offer a title insurance policy and most lenders will not offer a mortgage on a home that has passed through the small estate process. If you do plan on selling the home, you should consider filing a probate administration, which will allow a Fiduciary Deed to be issue (which will be accepted by title company's and lenders). Hope this helps!
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