Sale of Real Property in Probate
The following is important information regarding the sale of real property when there is a probate. Please take time to review this information carefully and share it with your realtor, buyer and the title company. The sale of real property in probate requires court approval. There are many steps in this process and this letter is designed to help you understand the process. We provide a checklist of the steps, describe the steps, and answer the questions we are often asked.
- Personal Representative/Administrator signs listing agreement
- Checklist sent to listing agent about process
- Publish Notice of Sale or obtain consents
- Obtain appraisal or obtain consents
- Personal Representative/Administrator accepts offer, with specific items needed in purchase agreement
- Prepare Petition for Confirmation and Return of Sale
- Court hearing where sale is confirmed by court (overbids may occur)
- Certified Order Confirming Sale of Real Property delivered to escrow for recording
- Notice of Entry of Order Confirming Sale of Real Property has been sent and filed
Personal Representative/Administrator Signs Listing Agreement
We suggest that the listing agreement specifically state that the sale is subject to probate court approval. Also, the commission total cannot exceed 7%. We also suggest it state “as is where is.” The Personal Representative/Administrator should sign the listing agreement (and all other sale documents) as follows: [Name of Personal Representative/Administrator] of the Estate of [Decedent].
Information to Listing Agent
We provide this checklist to the listing agent to summarize the sales process. We also provide the Notice of Hearing, and encourage them to advise all persons interested in bidding on the property, including the person making the original offer, to attend the hearing in order to protect their respective interests.
Publish Notice of Sale
We prepare a Notice of Sale and then it is published in the Nevada Legal News. It must run three times over a period of 14 days and 7 days apart. The Probate Court can waive this requirement if all the heirs consent in writing or if the Personal Representative/Administrator is the only heir.
An appraisal must be obtained on the property and be filed with the Court. The Probate Court can waive this requirement if all the heirs consent in writing or if the Personal Representative/Administrator is the only heir.
Personal Representative/Administrator Accepts Offer
We suggest that the Purchase Agreement specifically state the sale is subject to probate court approval. We also suggest it state “as is where is.” We further suggest that close of escrow specifically state: at least 10 days after the Notice of Entry of Order on the Order Confirming Sale of Real Property is filed.
Petition for Confirmation
A Petition for Confirmation of Sale of Real Property must be filed within 30 days from the date the sales contract is signed. All owners of the property must be given notice of the sale.
Hearings are held at the Regional Justice Center, 200 Lewis Avenue, Las Vegas, Nevada 89155. At the hearing, the court asks for open bids in court. If another bid for the property is received at the hearing, the court conducts a public auction at the hearing. The court will then accept the highest offer and confirm the sale to that person. If the original bidder is not present at the hearing, the court is allowed to confirm the sale to the highest bidder present at the hearing. The Personal Representative/Administrator does not need to be in court as your attorney will be present. You may choose to appear by audio visual means. The Agents for the Seller and Buyer may request to appear by audio visual means. The Court uses the Bluejeans application for audio visual appearances and anyone wishing to appear by audio visual means will need to contact the Court for a link.
Certified Order Confirming Sale of Real Property Delivered to Escrow for Recording
Before escrow can close, the certified Order Confirming Sale of Real Property must be recorded. In addition, a Notice of Entry of Order must be filed with the Court and mailed to interested parties. The conveyance must be executed by the Personal Representative/Administrator and must refer to the Order Confirming Sale.
Other Frequently Asked Questions
What if there is a higher bid in court?
If there is a higher bid received in court, then it can take one to seven days to get the new order with the new buyer’s name signed by the judge. There is no requirement for a new Purchase Agreement. The new buyer is subject to all the terms and conditions of the initial Purchase Agreement.
What if the buyer backs out after confirmation?
The buyer can be held responsible for all the costs of revoking the order and the difference in the sales price between the initial court confirmation and the final sales price. Once a new buyer is received and there is a new Purchase Agreement, then a new petition for confirmation must be prepared and submitted, the hearing is set, and there is another court hearing. None of the prior steps need to be repeated.
Can I expedite the process?
The time for publishing the notice of sale can be shortened upon a court order. The time set for hearing the petition for confirmation can be shortened upon a court order. When there is an order shortening time for hearing, every person entitled to notice must be personally served or sign a waiver. This increases the attorney’s fees and costs incurred, and the court must find there is good cause for shortening time.
I heard that court approval of the sale is not required.
When a probate is administered under the independent administration act, then the sale of real property may proceed without obtaining probate court approval of the sale. There are various steps that an independent administrator must follow before escrow can close. If a probate is not being administered under the independent administration act, then the sale must be confirmed by the probate court.
As Personal Representative/Administrator do I have to sign sales documents?
The Personal Representative/Administrator must sign the escrow documents. If the Personal Representative/Administrator lives out of town, escrow can send the documents to the Personal Representative, often via fed-ex, for the Personal Representative’s original signature where needed. Many sales documents can be handled electronically. For the documents we submit to court, we can submit an electronic signature and request the Personal Representative/Administrator mail the original signature to us.
Please let us know if you have any questions about the process. If you want to review all of the specific procedural rules, they can be found at NRS 148.270 to 148.320.
Provided as a courtesy:
Boyer Law Group | 702-255-2000