Selling residential property from a deceased estate

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Selling deceased estate propertyThe complexity of selling residential property after the owner passes away depends on how the property was held – jointly or as tenants in common.

You will first need to request an updated title search to ascertain how the property is owned and find out whether there are any barriers to prevent a sale (i.e. caveat/notice of claim).

Jointly held property
If the property is owned jointly, which is often the case with married couples or if the property is owned by a trust, Transmission by Survivorship will need to be completed.

Any jointly held property does not form part of a deceased person’s estate, but still needs to be dealt with in a timely manner after the person has died. This is because if it isn’t done, it becomes a much more complicated process when the surviving property owner dies.

Your lawyer will complete an Authority & Instruction (“A&I”) form and an Application for Transmission (Survivorship), which must be signed by the surviving title holder in front of a solicitor, or other person authorised to take a Statutory Declaration. A certified copy of the Death Certificate will need to be attached to the A&I form along with a photocopy of a valid photo ID for each surviving title holder.

Once the transmission is registered, the survivor will own the property and will be the registered proprietor on the title. The property can then be sold, but as stated earlier it does not form part of the person’s estate.

Property held in deceased person’s name
If the property is held in the person’s sole name, or as to a certain share (ie as Tenants in Common) then the property forms part of the estate and Probate (if there is a Will) or Letters of Administration (if there is no Will) will be needed in order to transfer or sell the property.

Once the High Court has issued a grant of either Probate or Letters of Administration your lawyer can complete an A&I form and an Application for Transmission (Personal Representative). The personal representative is the executor(s) or administrator(s) named in the Probate or Letters of Administration document.

All named executors or administrators will need to sign the A&I form and the Application for Transmission in front of a solicitor, or other person authorised to take a Statutory Declaration. A photocopy of a valid photo ID for each executor or administrator will need to be attached to the documents. In this case, a certified copy of the Probate or Letters of Administration document will also need to be attached to the documents.

When the transmission is registered, the property will have effectively been put into the name of the estate. If the executor or administrator’s name is John Smith, the title will show that the property is held in the name John Smith “as Executor” or John Smith “as Administrator”. This step, called the transmission, must be done before any property can be transferred to one or more beneficiaries of the estate, or sold. 

A notice of change of ownership will be sent to the local council and water provider. In many cases, the forwarding address of the executor or administrator will be care of the estate’s solicitors, meaning that all rates demands and water rates bills will go directly to the lawyers. If the solicitors are holding funds for the estate from the closure of bank accounts etc, they can make the rates and water rates payments directly.

It is important to make sure that the homeowner’s insurance remains current and that the insurers are advised if the property is unoccupied. The insurance company may require proof of who has authority to act on behalf of the estate (ie copy of the Probate or Letters of Administration document). In most cases your lawyer will be able to liaise with the insurance company on your behalf.

Sale of estate property
Once the transmission has been completed the executor/administrator can put the property onto the market to be sold.

It’s a good idea to consult your solicitors before signing an Agreement for Sale and Purchase, because there are particular clauses that can be inserted into the agreement that refer to the fact that, although the property is currently in your name as executor or administrator, you yourself did not previously own the property so you do not necessarily know about any alterations that may have been done to the property.

When you have an offer you can give your agreement to your lawyers, who will set up a sale file to do the conveyancing work.

As noted above, if the lawyers are holding funds for the estate from the closure of bank accounts etc, they can make payment of any bills related to selling the property, ie small renovations, cleaning and refurbishment costs, valuation services and advertising costs.

It is the estate’s responsibility to cancel the homeowner’s insurance, which your lawyer can arrange. Any overpayment made for homeowner’s insurance will then be reimbursed to the estate.

Once settlement of the sale has been completed, the solicitors acting for the sale will usually transfer the proceeds of the sale over to the estate administration file, after which the proceeds can generally be paid out to the beneficiaries as part of the major distribution of estate funds.

Transferring property to estate beneficiaries
If the property is to be transferred to the sole beneficiary of an estate (or to all of the beneficiaries), this can be done by simply preparing A&I forms and arranging to have them signed, as was done with the transmission.

If there is more that one beneficiary and one of them wants to take the property as part (or all) of their entitlement from the estate, you may need to get a registered valuation of the property in order to come up with an agreed value.

In this case your lawyers will draw up a distribution statement showing how much is available for each beneficiary. This statement will show the value of the property to be transferred to one of the beneficiaries. The lawyers will usually arrange for all beneficiaries to agree to the distribution prior to making the distribution payments and transferring the property.

If the value of the property is greater than the amount of the inheritance due, the person receiving the property would need to pay an amount to the estate to make up the shortfall. He or she may need to take out a mortgage to come up with this amount, which is done in the same manner as if the property was being purchased outright.

If you have any questions regarding the transferring deceased estate property, or wish to seek advice regarding administering a deceased estate, please contact the author, 
Mimi Lewell by phone on 837 6831 or email mimi.lewell@smithpartners.co.nz 

 

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