Question #1
Question:
We are buying a house and are in the middle of an escrow in California which closes
in approximately 60 days. The seller is in elderly widow and we’re concerned about
her health. In the event of her death prior to the close of escrow, will the sale of the
house be suspended and/or go to probate? How could we avoid this? We really want to close
on this house.
Answer:
Unfortunately, the shorthand answer to your query is that if your
seller were to die prior to the closing, it would delay your transaction because
the property would now belong to her estate.
The question then becomes how long your delay would be, and this
largely depends on how large the estate is, and whether the heirs want to proceed with the
sale. In California, the Probate Code allows for a “summary probate” in the case
of a decedent who dies leaving a total gross estate of $100,000.00 or less. In that
situation, the heirs can file a Petition with the Superior Court to determine succession
to the property. Once the court grants its order, it can be recorded with the county
recorder’s office, and the heirs can then proceed with the sale, if they so desire.
This is usually a much quicker and easier procedure than the “full-blown”
probate. However, if the total gross value of the estate exceeds $100,000.00, then a full
probate would be required. In that case, the personal representative of the estate might
still be able to proceed with the sale without court supervision, depending on the scope
of his or her authority, and whether any objections are received from the heirs after
proper notification.
Unfortunately, there is little you can do to protect yourself, other
than to try and close the escrow as quickly as possible. Once the seller passes on, the
property becomes part of the estate and it would take either a Petition to Determine
Succession, or action through the probate court in order for the sale to proceed.
