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My client’s parent just died and he needs to sell their home. What do I need to know about a probate real estate transaction? 

Probate  (also known as an Administration if there is no last will and testament) is the process of proving the validity of a will, transferring property, and settling the affairs of the deceased’s estate.  

SOME DEFINITIONS: 

Decedent – A person who is deceased. 

Estate – All of the personal assets and real property of the decedent, which is normally left to heirs. 

Location of Property – This is important. Even if the decedent is not a Nevada resident, if the real property is in Nevada, it must be probated in Nevada. 

Trustee/Executor – That person, either by will or by court appointment, controlling the estate. Also known as the administrator or personal representative.  This person is not necessarily an heir – think of them as a manager of a company. 

Court – Probate Court is unique as it is in the jurisdiction of the District Court, but administered special assigned commissioner.  As is often the case, Clark County has a good web site on the matter: 

http://www.accessclarkcounty.com/District_court/Probate.htm 

Heirs – Those persons or entities (could even be a University, for example) that have been bequeathed (left) a portion of the Estate. 

Counsel – Qualified Attorney of the Estate – This person can guide you through the probate or administration process (including proper notification of other potential beneficiaries of the estate) and can be helpful if a dispute arises with creditors or other potential heirs. At times, the heirs hire their own counsel, but usually only if there is large estate.  The Nevada State Bar’s Lawyer Referral & Information Service can be reached at 702-382-0504 (toll free in Nevada at 800-789-5747).  Prudential®, Americana Group, REALTORS® website has a lawyer referral list within the legal department’s web site. 

Process – Your client has recently deceased or you have been contacted by Administrator.  The Administrator can execute a Listing Agreement, even prior to being appointed by the Court.  So, go ahead and take the listing.  But, the Listing Agreement can be revoked if this Administrator is not later appointed by the Court.  When marketing the property on the MLS, ensure that you write “Subject to Probate Court Approval” in the Agent to Agent Remarks. Also ensure that language shows up in a counteroffer.  If a sale occurs during the probate process, the sale must be approved by the Probate Court. Here’s why.  Probate Court is concerned about the rights of the heirs and the creditors.  Therefore, it forces all sales to be public to ensure the highest and best price is received for the property. The Administrator is not the owner of the Estate, the owners are the heirs.  Therefore, the Administrator must have its actions ‘approved’ by Probate Court.   

So, you have an approved Purchase Agreement, signed by the Administrator, and the Buyer and then get it approved by Probate Court.  Then, provide the attorney for the estate  a copy of the Purchase Agreement, your Listing Agreement and all addendums.  This package will be filed with Probate Court.  Probate Court will be asked to approve the commission and the sales price.  If you represent the Buyer, you MUST HAVE your buyer present, because this is a ‘bidding process’ and not merely an approval process.  At the hearing, Probate Court will open the proceedings by stating words to the effect: “This is a PUBLIC HEARING for the sale of APN address, etc, for a sales price of XYZ dollars. Do we have any potential bidders?”  Often times there are competing buyers or merely ‘spoilers’ present whom bid at the required sum, “at least 5 percent if the bid is not more than $100,000, or by at least $5,000 if the bid is $100,000 or more,” (see NRS 148.270 ), just to see if they can win the property and sell it to your client (or someone else) immediately thereafter.  This is legal and happens often.   

Another scenario that may occur is when you are representing a buyer and you are unable to get your offer accepted by the seller/estate. Your buyer can appear at the probate hearing to approve the other offer and your buyer can bid pursuant to the 5% rule above described.  If, as the competing buyer’s agent, you are having difficulty in receiving information as to the time and location of the hearing, you can visit the Clark County District Court website at http://courtgate.coca.co.clark.nv.us/DistrictCourt/asp/SearchPartyOptions.asp.  If you know the decedent’s last name search under the “party” search.   

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