June 3rd, 2016 at 7:16 am
Question 1: Does Mom’s interest in the home have to go through the probate court process if she left behind a will?
Answer: Yes. Leaving a will does not avoid probate. After all, only a judge has the power to decide whether the will is uncontested and valid, and if so, to transfer Mom’s interest to her daughter.
Question 2: Can the daughter enter into a valid sales contract for the home before the probate court process?
Answer: Yes, technically. By entering into a sales contract, the daughter does not guarantee that she currently has marketable title. Instead, she is merely promising to transfer marketable title at close of escrow. However, entering into a sales contract now is very risky because, if the daughter doesn’t obtain marketable title by close of escrow, she can be held liable for any monetary damages the buyer suffers as a result of her breach of contract. The daughter should, at a minimum, consider making the sale contingent upon court approval using C.A.R.’s Court Confirmation Addendum form (CCA). She can also sell the home during the probate process using the C.A.R. Probate Purchase Agreement (PPA).
-Thank you to Lyle Elliott for suggesting this week’s legal tip.
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