By: Elizabeth Boyette
A large part of our practice in our transactional department consists of curing title issues for real property that arise as a result of improperly probated estates. To say that another way, our clients may have done a great job probating the estate of their loved one, but they failed to take certain crucial steps in order to deliver marketable and insurable title to new buyers if they listed their loved one’s property for sale soon after death.
Under North Carolina law, it is necessary to run the notice to creditors prior to the sale, lease, or mortgage of real property within two years of the death of the decedent pursuant to NCGS 28A-17-12. In addition, most title insurance companies require that the personal representative open a full estate and that the notice to creditors run at least once in the newspaper prior to closing on the sale.
Because real property technically passes outside of probate, many of our clients fail to open a full estate prior to going under contract to sell, as the probate assets in the estate are under a certain monetary threshold. Several easier, more efficient probate options that clients often choose instead that do not clear title are Collection by Affidavit, Application and Assignment for Spousal Allowance, and Summary Administration. In addition, some clients, often upon the advice of their attorney, choose to petition as a Limited Personal Representative.
Petitioning as a limited personal representative is utilized by practitioners when there are no other assets in the estate besides real estate, but they intend to run the notice to creditors without qualifying the client and opening an estate. Unfortunately, this mechanism does not work to clear title for many title insurance companies and often does not put the clients in the best position to sell.
Our firm has experience in curing a multitude of title issues related to probate and real property. We are happy to help agents and clients who need advice on closing as quickly and efficiently as possible. Email me today at elizabeth@jacksonlawnc.com for a complimentary phone consultation to discuss further!
With this knowledge, now you can Rest Easy.
