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Probate During COVID-19

Posted September 16th, 2020 under pitfalls, smart selling.

In the past, when a property was sold by the heirs of a deceased owner, the most important factor in determining the closing date was probate.

(Probate is the process through which a deceased person’s will is confirmed as legitimate and any challenges are dealt with. Once probate is complete, the executor has the power to begin distributing the assets of the estate.)

Unless probate is completed, the title can not be conveyed to a new owner. If the probate process is underway but not completed, this can create a level of uncertainty as to whether the closing date could be met. Typically, the lawyers would put a “rush” on the probate, citing the sale and closing date, and the governing body would accelerate the probate process to have it completed in time for closing.

COVID-19 has changed all of this. Probate can now involve a minimum 6-to-9-month time frame, and no “rushes” are allowed. Everyone simply waits in line based on the date they applied for probate.

This can jeopardize a potential deal, unless a provision is included in the Agreement of Purchase and Sale to allow the closing date to be adjusted if probate is not complete.

If you are involved in a sale affected by a probate process, make sure such a clause is included.

Want to know more about selling a home as an executor or heir? Just ask me, I'll be happy to help.

--Peter

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