I’ve counseled clients for years to qualify as executors soon after the property owner’s death.- Many real estate closings are delayed at the last minute because it is discovered that the person who signed the real estate contract does not actually have legal authority to complete the transaction because he or she does not own the property.
- If the legal owner of title is deceased, only the executor under the will or – if there is no will – the administrator of the estate duly appointed by the county Surrogate has the authority to close title to the property and then distribute the sales proceeds to the rightful heirs.
Background to Blog
A general lack of knowledge about probate and the estate administration process helps explain why many people are unaware of the legal requirements for selling the real estate of a deceased owner, the responsibilities of the Surrogate, and what this office does to assist in the sale of the decedent’s property. If you list estate property with a realtor, the realtor usually knows the owner has died. The realtor should immediately ask the person they are working with for a copy of their Surrogate’s appointment. If there is a confused response from their client, there needs to be a discussion right away. While most sellers are represented by an attorney, once a contract is signed with the prospective buyer, the attorney will ask for a copy of the Surrogate papers for review.
Waiting until the buyer’s title company does its title search is often too late. By the time the title binder reaches the seller’s or buyer’s attorney (if there is one), everyone will realize there is a problem, especially if a closing date has been scheduled. Why is this so important? Because without a Surrogate’s appointment of an executor or administrator, there cannot be a lawful transfer of property ownership.
The takeaway from this blog is to start the probate process as soon as possible after the owner’s death, especially if real estate is involved and it is contemplated for sale as soon as possible.
To discuss your NJ probate and estate administration matter, please contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Probate and Estate Administration Attorney