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How Long Does a Probate Sale Take? Do All Heirs Have to Agree to Sell Property?

When they pass away, people often want to leave their assets and properties to persons they care about. But sometimes, the deceased doesn’t make a will or dies with debts, and in such cases, their property must go through a probate process before being distributed to the legal beneficiaries. When there is insufficient liquidity, this legal process will involve a probate sale, in which the probate courts oversee the sale of any real estate owned by the decedent.

You may be entitled to inherit the real estate or need to act as an executor or administrator of an estate that owns this property. Or there may be an option for potential buyers to purchase the real estate. Either way, you’ll need to understand the probate sale meaning.

In this article, we’re going to walk you through the basics of probate sales: what they are, how probate sales work, and how long they can take.

What Is a Probate Sale in Georgia? 

In real estate, a probate sale refers to the late person’s property that is now being sold during the probate process.

Probate sales are administered by the Personal Representative over the estate and occur when there is a need to sell real estate that is part of the deceased person’s estate.

Why Would a Property Be Sold Through Probate? 

There are many reasons why a property may be sold through the probate process.

probate sale without court confirmation
Image by pressfoto on Freepik

The will states that the home is to be sold and proceeds divided accordingly.

If the deceased left a will and has been probated and accepted by the probate court, the appointed executor will be responsible for carrying out the terms of the will. If the testament states that the probate home will be sold, then the executor must perform that task.

There are legitimate creditors to the estate that must be paid, and more liquid assets are needed to pay the outstanding debts.

In a Georgia estate situation, according to state laws, creditors must be satisfied before heirs or beneficiaries receive any probate properties. If the deceased did not have enough money to pay any outstanding creditors, then the executor or administrator must sell the real estate to satisfy those creditors.

If there is no will and the heirs have agreed on a probate house sale and split the proceeds.

When the deceased passes away without a will, the family will often nominate someone to become appointed as the estate’s representative.

If the appointed administrator has full authority to sell the property, they may move forward with the legal proceedings for doing so. After outstanding creditors are satisfied, the home sale proceeds would be divided between the heirs.

If the court rules that the home must be sold. Often, this happens either to satisfy outstanding creditors or because the heirs or beneficiaries cannot agree on what to do with the property.

If the heirs or beneficiaries do not agree on what to do with the property, the court may need to get involved and decide whether to force the probate home sells.

These are the most important reasons why probate real estate can be sold. However, there are other potential reasons why the estate administrator or executor decides to sell the deceased’s property.

What Happens If Someone Lives in a House That Is Subject to Probate? 

The answer to this question depends on several factors. Whose name is on the title of the house? Is the property solely owned by the deceased, or does it have more than one co-owner?

If the home is solely in the deceased’s name and

  • if there is no one arguing or disputing, there may not be an issue with someone living in the home while the succession takes place. Please note that this can change depending on certain circumstances.
  • if there is a dispute and one heir or beneficiary doesn’t want someone living in the home during the probate proceedings, then the appointed executor or administrator may seek to have the person removed from the home to settle the estate properly.

If the home is titled as JTWROS, the ownership will automatically transfer to the surviving person(s) listed on the deed. In the case that it is not JTWROS, then a portion of the property may have to go through the entire process of probate, similar to when the late person solely owns the home.

If it is not Joint Tenants with Rights of Survivorship (abbreviated as JTWROS) and the tenant’s name is on the deed, then they are considered co-owners of the property and hold a specific interest in the real estate. They may be allowed to live in their house until a time at which a decision is made on whether to sell the property. If one party wants to keep the property, there may be an option for the party to buy out the interest of the other party/parties.

This is a complicated process, and we recommend having an experienced probate attorney assist you.

How to Buy a Probate Sale House? 

Before the deceased person’s home can be purchased, probate proceedings must be opened, and the probate court must appoint a personal representative to settle the estate.

  • If there is a will, the loved one may have nominated someone they trust — an executor — to manage the estate. They will be authorized to decide on estate matters, but only after they have the probate court approval on the will.
  • When there is no will, the family members will designate someone to become an administrator. The administrator will only be authorized to act once the court has appointed them to their position.

Once the executor or administrator (both known as a personal representative) accepts the role, they will receive a court order that outlines their authority, including any expanded powers that grant them permission to sell estate property.

If the court order did not grant them expanded powers, they would need a separate petition for leave to sell to gain permission to sell a home through probate.

Determining the Value of Probate Real Estate

Before selling any property, the Georgia Probate Court requires an appraisal. Estimating the appraised value of a probate property involves considering factors such as its size, location, and condition.

It is best to hire a professional appraiser to determine the listing price of the real estate, as it can take time and be tricky to do it yourself. If you need help finding an appraiser, you can request a recommendation from your chosen real estate agents.

How Long Does a Probate Sale Take? 

Assuming there are no disputes that would cause delay, the probate sale process typically takes between 6 and 12 months.

That’s because the property will have to go through certain probate proceedings, such as property appraisal and paperwork.

Probate Sale vs Regular Sale 

Probate Sale

In the case of an estate sale, the owner of the property has passed away. For someone to sell the property, the probate court must appoint a personal estate representative.

The appointed personal representative can have expanded powers (which will give him or her the authority to start the probate sale without court confirmation) or limited powers.

If the administrator/executor is appointed without expanded powers, they may be required to file a petition with the probate court requesting permission to sell the property before moving forward.

Regular Sale

traditional-sale
Image by jcomp on Freepik

In a traditional sale, the property owner is living and can sell their property. Once the property has been sold to the interested buyers, the proceeds can be deposited directly into the seller’s bank account.

Advantages and Disadvantages of Probate Sale 

Selling and buying a house or property always come with pros and cons for both sellers and home buyers. Succession properties are no different. While for sellers, the disadvantages might be more emotional, the advantages are often financial:

  • money to pay the deceased’s debts.
  • elimination of potential conflicts between beneficiaries and heirs over the property.
  • depending on the condition of the property, possible home inspection, and repair costs so that it can be sold at a later date.

Are Probate Sales Cash Only? 

No, probate sales can be purchased in various ways, including the buyer taking a loan to pay for the property.

Do All Heirs Have to Agree to Sell Property? 

Not necessarily.

If a will exists:

After the probate court accepts the will and appoints the executor, they must satisfy all the creditors before transferring any property to the heirs. Without enough assets to pay what the estate owes, the personal representatives may have to sell the property.

If the real estate property remains intact after paying creditors, the executor will have to consider how the will describes the family member:

  • if the will says the property should go to a family member who wants to keep it, then the executor can transfer the property by creating a new ownership document.
  • if the family member who wants to keep the home is one of several beneficiaries, they can consider buying the real estate from the other family members. The property will then be priced at fair market value.
  • If the family member is not a beneficiary of the property at all, they can consider purchasing the property from the estate at a fair price to the market value.

If there is no will

The probate court will need to appoint an administrator to manage the estate. The administrator must pay all outstanding creditors out of the estate assets. If the assets come up short, they may have to sell the property to pay off the debt.

After that, the family member who wants to keep the home may consider buying the remaining heirs out of their portion. If the heirs cannot agree on a fair market price for the interested buyer, selling the property may be an option to give everyone their fair portion of the estate.

Do You Need a Probate Sales Attorney?

It is recommended to have a probate attorney to guide you through the complex probate process in Georgia. It would be best to have a specialized real estate agent assist you with selling the property.

Our office is open to any questions or concerns you might have when dealing with a probate sale. You can reach us at (770) 796-4582, and we would be happy to assist you.

 

Disclaimer: The information above is provided for general information only and should not be considered legal advice. Our probate attorneys provide legal advice to our clients after talking about the specific circumstances of the client’s situation. Our law firm cannot give you legal advice unless we understand your situation by talking with you. Please contact our law office to receive specific information about your situation.

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About the author

Erik J. Broel
Founder & ceo

Erik founded the firm in 2009. He sees it as his personal mission to demystify the process of handling an estate or trust, and to help people by making the complex estate process simple and accessible. He believes there is always a better way to do things, and loves finding new and innovative ways to deliver better, more effective service that solves the client’s key problem or issue, and improves the client’s life.

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