When the owner of real estate dies.

When the real estate owner dies and the family desires to sell the real estate, then check to see whether anyone else’s name is on the deed. If there are no other names on the deed, then the decedent’s will must be probated so the Executor can sell the real estate on behalf of the decedent’s estate. When writing an Agreement of Sale, the name of the Seller is “Estate of __________, Deceased, by ________________, Executor.”

If there is someone else’s name on the deed, determine how the owners held title. Sometimes title is held as “joint tenants with rights of survivorship” and sometimes the co-owner is a spouse and sometimes title is held as “tenants in common.” In the first two scenarios, the decedent’s ownership automatically passes to the survivor and the survivor can sell the property (and inheritance taxes must be collected and paid) without probating the will. In the third ("tenants in common") scenario, in order to sell the real estate, the will needs to be located and probated.

As an aside, a Power of Attorney can never be utilized if the person granting the power has died. Power of Attorney instruments can only be used when the person granting the power is still alive (and those who are asked to rely on the Power of Attorney may ask for proof that the Power of Attorney instrument has not been revoked).