Probate?

Question

I've had a a property fall on my lap that is in probate. The gentleman's brother died and inherited his property. The property is currently in probate for 4 months. Can I take possession of this property during the probate period or should a write a option contract to lock up the property until the end of the 4 month period? Thanks for your time!

Rick H. · Answer

As a probate specialist and advisor to the CA legal community, I can assure you that a  buyer acquiring a property from an estate does NOT need to to consult an attorney under normal circumstances.

What they need is sufficient knowledge of the process in their locale.

Equity, possession and title. That's what I'd be concerned with primarily, in that order (for now). As @Dave Metsker suggests, you can time the release of funds to keep your PR seller and estate heir/beneficiaries in a cooperative mood (and avoid adversarial threats from disgruntled family).

Dave Metsker · Answer

You may make a contract with the heir(s) before, during, or after the probate.  Once in contract, I sometimes give the heir(s) some advance money, as part of the purchase price.  If the estate is cash poor, this helps greatly, in order to have my low offer accepted.

Rick H. · Answer

If you take possession before transfer of title, you are at risk becoming a trespasser unless another arrangement has been agreed upon.

If your contract (or modified agreement) permits you to rent or take possession now, subject to transfer of title later, you should have no problem. If your PR has no interim powers to complete the contract now, you'd have the potential exposure of threat from a PR who does not complete the transaction for one reason or another or a competing petition for probate by another family member or beneficiary of a competing will.

You, like many who post on BP, want a black and white answer when the facts and circumstances suggest you wait. The correct answer is "it depends" on your tolerance for risk.

Skylar Dejesus · Answer

Rick H.

I appreciate your insightful responses. Can I take possession if a title search comes back clean or do I still have to wait for probate to end?

@James Miller James I also appreciate your response and I have been in cahoots with a probate attorney.

James Miller · Answer

Make sure you talk to a probate lawyer in your jurisdiction. Different probate procedures may need judge approval for any sale or lease to be valid, while other procedures just need the heirs / beneficiaries to all sign. In either case, you need your lawyer to tell you what is 'enough' to make you have a claim against the estate / property if they try to welch on the deal.

Dave Metsker · Answer

Early possession may require the PR to post a bond, which would be an expense to the estate.  If there is no reason to close early, just be patient.

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