In recent years, there has been an uptick in the number of real property transactions involving estates. This development has, understandably, generated many questions from the parties involved – buyers, sellers, and realtors – particularly surrounding who needs to sign documents and what other actions need to be taken to successfully close on the property. The answers to those questions will ultimately depend on each individual transaction and can become quite complex, but this series of posts will hopefully serve as a good starting point.
Will or No Will?
The first, and possibly most important, question to ask is whether the deceased owner of the property had a valid Last Will and Testament. Without a will, real property automatically transfers to the deceased party’s heirs via intestacy, which is determined by North Carolina statute. It is important to note that there may be multiple heirs, even if the decedent was married. Additionally, heirs may not be local, so being able to identify who may have an ownership interest in the property as early in the process as possible will be helpful.
On the other hand, if the owner had a valid will, real property transfers to the person or people named (“devisee(s)” or “beneficiary”). The devisee can range from individuals, a group of people (i.e. “my children,” “my surviving heirs,” “my siblings,” etc.), the estate, the Executor, a trust, etc. Knowing this information ahead of time will make it easier to determine who may need to sign documents for closing. However, for the will to validly pass title to real property, it must be filed for probate – simply having a will is not enough!
The will should also name an Executor, sometimes called the Personal Representative. If there is not a will in place, a Personal Representative will need to be appointed. This is an important step because the Personal Representative of the estate will likely be required to join in signing documents for closing if the estate is still pending (i.e. the final accounting has not been submitted and approved).
Determining the current owners of the property, whether heirs or named beneficiaries, and the Personal Representative of the estate is only the first step in the process. Confirming that the will is validly probated, assessing who needs to sign closing documents, and verifying that the property can be sold requires several other questions, which will be discussed in subsequent posts.
Read Part II
Revolution Law Group is located in Greensboro, NC, and serves individuals and small businesses throughout the Triad and surrounding areas. To contact us please visit Revolution.law or call 336-333-7907.
The information included here is for informational purposes only, is not exhaustive of all considerations when creating documents, is not intended to be legal advice, and should not be relied upon for that purpose. We strongly recommend you consult with an attorney and do not attempt to create your own documents.