We’re Ready to Close on a Home. But the Deed Holder Has Just Died.

Well, this gives a whole new meaning to the term closing.

And yes, it happens. As the baby boomer generation continues to get older, it will likely happen even more. But it’s one thing that’s likely not on a home buyer’s radar as the closing date draws near.  

First, rest assured. Your deed transaction should move on, even after the seller has departed. Of course, someone new will have to act for the late homeowner now, but usually this situation can be worked through.

Now for the details.

Will the Person Holding Power of Attorney Continue the Sale?

If your late seller was transferring the home through a representative with power of attorney, then you were working with the late deed holder’s adult child, or perhaps a sibling, or someone else. Whoever was working with you on behalf of the seller has now legally lost the power of attorney. Bottom line here: a power of attorney ends when the person being represented passes away.

Therefore, either the seller or the seller’s legal representative can no longer represent the seller’s side of the deed conveyance. So, now what?

Now, you can expect the estate to go under the oversight of the probate court.

Some deed holders, if their states allow this, avoid probate through a transfer on death deed or affidavit. This instrument conveys a property interest to a designated “beneficiary.” It has to be recorded with the county before the deed holder passes on.

So, what’s your role? It’s largely about communication. Call or have your agent call your title and escrow company. Its staff can discuss estate settlement steps with your agent. The late deed holder’s will might be held by the escrow agent, if this situation was an anticipated possibility. Wills can include direction on selling the deceased will maker’s real estate.

Is My Purchase Contract Now Void?

No, the contract is not automatically nullified by a death of a party. Read the purchase contract. Most real estate contracts hold successors, heirs, and estates responsible for carrying out their terms. If your contract has language stating it binds executors and administrators, your rights are likely to hold up in court.

And if the will provides direction for a new representative in the late owner’s home sale, you may be able to get a new set of pre-closing documents, naming the estate’s representative as the seller. If the documents show the closing date unchanged, you’re in the optimal position.  

But what if it’s not so simple, and you do need to await the probate court’s determination? Then, there are a number of ways your circumstances could go.

Let’s take a look.

Will Probate Delay My Closing and by How Long?

Probate can both delay and support a deed transaction. Let’s walk through this.

Once a person passes away, the county probate court oversees the distribution of that person’s estate.  

If a buyer has to wait for probate to finish before getting the real estate deed from the court, your real estate agent  can have the purchase contract extended.

You are now wondering how long the probate court will take to conclude its work and allow for the distribution of assets. Probate can take weeks, months, or, in some court proceedings, more than a year.

Does this mean you’re stuck waiting perhaps a year to get a home? We hope not! The probate judge could agree to a speeding-up of the home sale, so that you wouldn’t need to wait until probate to be done.

You might also want to know if the personal representative of the deceased would be willing to iron out an agreement so that you can live in the home even before probate comes to a conclusion.

Could it be time to review your estate-planning goals? You can start now, by checking for nine typical deed mistakes. 

What Is the Lesson for Deed Holders Here?

This situation illustrates the point of creating a trust. If the late owner’s deed had been placed in a living trust (a.k.a. revocable trust), this snag wouldn’t have occurred. The person named as trustee would just sign the necessary papers after the deed holder’s death, keeping your purchase rolling along.

Many of us write wills and feel we’ve got ourselves and our deed transfer covered. By writing a will, we direct the county probate court in advance to follow our wishes and convey our deeds to the designated party or parties. Nothing wrong with writing a will and passing your home along with a deed from the court. That’s a solid way to convey real estate.

But as we get older, we might rethink our estate planning. A trust could help a home move after the owner passes away. As we can see, that could constitute very good planning when the end of life becomes a distinct possibility. It makes sense to ensure that when the time comes, others you trust can act easily, and your beneficiary will receive the value of your home promptly.

What are the steps involved with a deed transfer out of probate? Here we present the way to sell a probate property in six steps.

Don’t I Give Up Control if I Place My Deed in a Trust?

You’ll be the trustee who keeps control of your deed as long as you’re living. Throughout your life, you may freely tap into your home equity, or sell if you wish. After your life, the next trustee (a person you choose) manages the trust.

The trustee transfers the deed to the next homeowner. The trust receives the proceeds on behalf of the heirs. The title company might let the funds go directly to the seller-beneficiary rather than wind indirectly through the trust. In any case, no need for probate.

The living trust is a common estate planning device. This is a choice you can make when it feels appropriate to you. If you are considering this form of planning, consult with an attorney who focuses on estates and trusts.

That said, we all need wills. Dying intestate is the opposite of good planning. Even those who take the time to set up revocable trusts still need to direct what happens with the other belongings.

Because you’re free to modify or end your living trust while you’re alive, it is not a method of receiving tax breaks. Speak with your accountant or financial planner if you need to tax reductions. (This query usually comes up for high-wealth people.) Read more about the nuts and bolts of living trusts at Deeds.com.

Over to You…

Everything will have to follow the laws of the home’s state. You’ll lean on the professionals involved in your transaction. You’ll value their expertise as the chain of title passes from the late homeowner, over to you.