Secure the Real Property Belonging to the Estate

One of the executor's biggest challenges is to deal with real property belonging to the Estate. It is the executor's duty to preserve and protect the real property until such time that the property can be distributed to the heirs or the property can be sold and the proceeds distributed.

Set aside the house for the Surviving Spouse

The decedent's surviving spouse and minor children have a right to continue living in the house if they were occupying the property as their homestead at the time of the decedent's death. This is true even if the house was the decedent's separate property and if the house is given to another person under the terms of the Will. The right to reside in the house also comes with responsibilities. The taxes and the mortgage must be paid. If you have a contentious situation regarding the rights and duties of the homestead tenant, please contact us.

Secure the House

If a vandal or thief in determined to get into a house, it is almost impossible to stop them. There are some things the executor should do to minimize the chances of theft or loss. The executor should maintain the yard. Go to the next door neighbor's house, ask them who takes care of their yard, and hire the same people. Also ask the neighbor if he or she would be willing to walk over to the house periodically and remove the flyers that are left on the front door or porch of the house.

Keep the lights on. You want the house to appear lived in from the streets. Buy several timers so that you can program the lamps to go on and off. Use one of the timers for a clock radio. Draw all of the curtains so that thieves cannot look inside the house.

Maintain Insurance

The executor has a fiduciary duty to preserve the assets of the estate for the benefit of the beneficiaries. Therefore, you should always maintain insurance on the estate's houses. If the house is vacant, it is my experience that the decedent's insurance company will allow the policy to continue through the remainder of the term of the policy. Thereafter, the company will either terminate the policy or insist upon a "vacancy rider" which means the policy will be much more expensive. At a minimum, be sure that any houses have a wind, fire and hail policy so that if the house burns down or hail damages the roof, the property can be repaired.

Conveying the Property

If you want to transfer the property to the beneficiary named in the Will, then this can happen one of two ways. First, probating the Will in and of itself is often sufficient to transfer title to the property without the executor needing to take any other action. The probate proceedings are often kept in the county clerk's office. If not, then you should file a certified copy of the will and the order admitting will to probate in the real property records in the county where the real property is located. Your second option is for the executor of the estate to execute a "Distribution Deed", "Executor's Deed" or a "Special Warranty Deed" that grants the decedent's interest in the property to the beneficiary listed in the Will. This Deed is executed before a Notary Public and is filed in the Deed Records of the County Clerk's office.

How do I get a new deed for the property?

Selling the Property

Shortly after the decedent passes away, you will start to receive tasteless letters and possibly phone calls asking if you want to sell the decedent's home. If there are no surviving homestead tenants, then you may want to sell the property. You should first read the will and determine if you have the power to sell the property. If not, then you may have to obtain the consent of the beneficiaries before the property can be sold.

If the will gives you the power to sell the property, then I recommend that you first contact a Realtor to get a comparative market analysis or "CMA" for the property. If the CMA is close to the offers listed in the investor letters, then go ahead and sell to an investor. My experience is, however, that the investor offers will be about a third less than what you can get for the property by selling with a Realtor. In any event, you should ensure that you get a reasonable price for the property as you have a fiduciary duty to do so. Listing the property on the MLS is the best way to prove you received market value for the property. A CMA or appraisal is your second best option.

The title company is the gatekeeper regarding the sale of the property. It is guaranteeing the buyer that an unknown heir or owner will not show up at the house, drop his or her bags, and announce "I'm home!" Therefore, they will usually make sure that you have the authority necessary to sell the property. They will usually want to know that the estate has been probated and may want certified copies of certain probate documents. Please contact us if the title company requests any documents that you are unfamiliar with.

If the title company requests a letter from your probate attorney about federal estate taxes, please consult our webpage on the topic: Lawyer Letter regarding Federal Estate Tax.

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