The death of your loved one can be a traumatizing experience, but you must find the courage to soldier on with life. If the deceased owned real estate, it might be time to identify the beneficiaries and heirs.
According to probate laws in Virginia, you can sell such properties. You can sell the quickest if you sell your house without a realtor.
A sale is usually desirable when the property is passed to beneficiaries. All beneficiaries must consent to the sale. Sometimes, the will may give the power to sell, transfer, and convey real estate to a particular beneficiary.
In certain circumstances, an executor, who is assigned to administer the last will of the deceased person, might sell the property during probate. An executor might also sell the assets of the estate to offset the estate’s debts.
What Is a Probate House?
Probate is the legal process of distributing the deceased’s property. It involves proving the will in court or administering the property if a person dies. A house in probate is any inherited house that’s still under this will.
Probate procedures follow Virginia statutes, particularly Title 64.2 of the Code of Virginia.
Probate estate goes through a court regardless of whether a will is present or absent. The clerk of the circuit court handles estate administration in Virginia. The judge only steps in if conflicts arise.
Not all of the deceased’s estate goes through probate. If the decedent owned property as a joint tenant with the right of survivorship, the surviving owner would be the estate’s custodian. If the property was under a trust, the terms of the trust would guide its distribution.
The estate doesn’t have to pass through probate if the deceased executed a transfer on death (TOD) deed. Instead, it automatically goes to the named beneficiary.
Formal administration isn’t necessary if the deceased owned a small estate. The beneficiaries only need to complete a simple affidavit if the value of the personal property is below $50,000.
In the case of intestacy, the laws of the Commonwealth of Virginia come into play. These laws take effect from the date of death.
How Long After Probate Before You Can Sell the House?
How long after probate to sell the house? As a beneficiary, you might ask yourself, how can I sell my house fast in Virginia Beach? The answer depends on many factors.
Probate is a time-consuming process that takes anywhere between six to nine months. It isn’t uncommon for complications to arise and drag the process.
Once it ends, the executor distributes property to the beneficiaries. The beneficiaries are then free to sell the decedent’s estate. Of course, all the beneficiaries and heirs must approve the sale.
The transfer of inherited property is also subject to the executor’s power of sale. If the decedent left a sizable debt, the personal representative might sell the real estate to cover this debt.
Before selling an intestate property, the administrator has to obtain an order granting the power of sale.
An executor can only distribute an estate six months after the probate court issues a Certificate of Qualification. After the six months elapses, the court may request creditors to show cause against the passing of an estate to beneficiaries.
Afterward, the court may release the property to the fiduciary. The representative then distributes the estate in compliance with court orders. You can sell your house for cash once the executor distributes the property.
The duration of selling your probated house will also depend on the fixes and upgrades you intend to make. If the inherited home is in bad shape, it might take a long time to fix.
Instead of fixing the house, you can sell it to house flipping companies. For example, top companies that buy houses in Norfolk don’t require the home to be in top condition.
Probate Process for Real Estate in Virginia
The fate of the decedent’s estate largely depends on whether there’s a will and the estate’s title.
Non-probate properties include:
- Jointly owned estates with rights of survivorship
- Assets payable under contracts
- Transfer of death deed
Jointly Owned Property
If the deceased person jointly owned property with another person, then this property won’t undergo probate.
You can own real estate property as tenants in common or joint ownership with rights of survivorship. Couples can also own property as tenants by the entirety. In case of death, such properties pass directly to the survivors.
Assets Payable Under Contracts
These are assets that pass to a named beneficiary. Aside from properties, examples include:
- Life insurance policies
- Retirement accounts
- Payable on death bank accounts
The terms of the contract identify the beneficiary when the insured dies.
Transfer of Death Deed (TOD)
The deceased can transfer property directly to a beneficiary at the time of death. Such properties don’t have to pass through probate.
An estate with no joint ownership or a TOD will likely go through the probate system.
The Procedure of Settling an Estate via Virginia Probate
Filing the Will
Custodians can initiate probate by contacting the circuit court clerk’s office. This usually happens in the jurisdiction the decedent last lived or owned real estate.
A custodian is often the person named in the will to act as the executor.
The executor has to submit:
- The original will
- A certified copy of the death certificate
- A memorandum of facts
- List of heirs
- An estimated value of the estate
If a will isn’t self-proving, the court may request a witness to appear in person and validate the last will. The witness must have signed the valid will and also seen the deceased sign it.
If the will is absent, the court will appoint an administrator. The administrator acts as a personal representative with fiduciary powers to administer the property.
The executor handles all assets that go through probate. This includes motor vehicles, real estate, brokerage accounts, personal belongings, and bank accounts.
Filing for probate in Virginia isn’t free. There are fees and taxes you should pay. Virginia’s probate tax is 10 cents per $100 of the estate’s value.
Localities can also impose an additional local tax which is one-third of the state’s probate tax. Besides the taxes, you’ll need to pay court fees. Luckily, you can use the property’s assets to settle these fees.
Certificate of Qualification
Unlike other states that issue letters testamentary, Virginia’s circuit court issues certificates of qualification to executors. This document grants legal authority to personal representatives to act on the estate’s behalf.
Within 30 days of getting the qualification certificate, the personal representative has to notify heirs of proceedings.
A nonresident fiduciary must appoint a Virginia resident to act as their agent.
Submitting Inventory to the Commissioner of Accounts
The executor has to submit an inventory of estate assets to the Commissioner of Accounts within four months. The commissioner is responsible for approving inventories and accounts.
Payment of Debts and Taxes
The executor is responsible for settling the estate’s debts. This also applies to probate costs and funeral expenses.
The representative also handles the final income tax return of the deceased (both federal and state taxes). There is no need to file a federal estate tax return unless the estate is too big.
Closing the Estate
The executor/administrator can only distribute the estate once all the debts and taxes have been paid. The distribution must honor the will and abide by Virginia law.
An executor with the power of sale has to appraise a house before listing it for sale.
In the absence of a will, heirs at law inherit the property. The heir could be a surviving spouse or children.
Finding the Right Probate Lawyer for Your Property
Probating a will is usually a cumbersome process. That’s why you need legal advice from a probate attorney. Here’s how to find the right lawyer.
Consider the Type of Lawyer
There are two types of probate attorneys, probate litigators, and transactional lawyers. Go for transactional lawyers to handle the administrative side of probate. Probate litigation will serve you better if you have contests in court.
Look at the Biographical Information
Investigate the expertise of the lawyer you intend to hire. Do they have any experience in probate, estate planning, or trusts?
Consider Local Lawyers
Local lawyers are well-versed with probate laws of a particular state.
Ask for References
Ask friends and family members whether they know of an attorney who can help you with probate proceedings. You can also use search engines to find reviews and ratings of a particular lawyer.
Once you shortlist a lawyer, you can ask questions like:
- What’s your hourly or flat rate fee?
- How many probate proceedings have you handled?
- How long will the probate last?
- How much will the entire process cost?
Can You Sell a House Before Probate Is Completed?
So, can home buyers buy my house in Virginia if it’s still in probate?
No. It’s not possible to sell a probate house by yourself before the probate process is complete. An executor can do so in a few instances to pay off the deceased’s death. With that said, you can freely sell a home if it’s non-probate property.
Probate isn’t required if the deceased:
- Placed the property in a living trust
- Held a joint tenancy
- Transferred property to the beneficiary at the time of death
Selling a house in probate in Virginia isn’t always a straightforward process. The fate of an estate largely depends on the will, how the estate is titled, and the executor’s power of sale. It’s difficult to sell probate property before the probate proceedings end.
Work with home buyers today to ease the process of selling your inherited house.