woman stressed If you are reading this page, then something very sad has likely happened to your family, and to this, we would like to express our deep sympathy to your family.

Dealing with your loss but still having to move forward is challenging. On this page, we outline some information that you might find helpful to get your bearings and understand the path forward. Please note that we are not attorneys. The information presented on this page is for educational purposes. It should not be considered legal advice as it been greatly simplified to help you understand the place to start and some of the questions to ask.

Please note that a Will does not mean or immediately transfer ownership nor give you the right to sell real estate. When a person passes on, all their debts and assets must be looked at to see what happens now, as the owner can no longer pay them nor make decisions about them.

Sometimes real estate transfers automatically or not at all, depending on how they were owned. You must review documents in detail to determine these things. Do not go by what you think or what you were told. Debts must be determined and paid before distributing any remaining assets, including money, regardless of what the will says. This is accomplished through probate when required. Below we give you some insight into when this may or may not be required.

There are numerous aspects for you to consider, and the more complex the estate, the more likely you need to seek professional legal advice to work through each of them.

The first thing to understand is how real estate was held. While your loved ones owned the property, there are different ways they may have achieved that ownership, and if I tried to explain it here, this would be a very long page. The best thing to do is to get a copy of the Vesting Deed, not a Deed of Trust. A copy of the vesting deed can be found with the original closing documents, but it’s always best to pull the most current version from the county. Call the local title company where the property is or us, and we will get you a copy of the Vesting Deed free of charge. Next, if the property was in a Trust, LLC, or any other entity, obtain a copy of the controlling documents, articles of incorporation, or the trust.

Now read that deed you obtained and see who the Buyer was. If it is denoted as something other than your loved ones’ names, you must read the controlling documents associated with that name. Real Estate owned like this rarely goes through probate. For example, a trust or LLC will have documents that outline, or should, what happens after death; who, if anyone, has the right to sell the real estate? This person can contact a real estate agent and begin discussing the sale where they desire to do so. Please note that the real estate agent and title company will want to see a copy of these documents to verify who can sign the contracts, make sure they do this before the contracts are signed to prevent having to do it all again or not being able to close with the new buyer. If no one is explicitly denoted in the controlling documents as having the ability to buy and sell real estate, then you need to speak to an attorney to update the controlling documents as necessary. Also, note that real estate owned by an LLC sometimes does need to go through probate depending on how the article of organization was written.

Where the deed has the name of the loved one that has passed away listed as the Buyer and lists no other person(s) then this asset will be part of probate; however, if it lists someone else and that person is still with us, then we need to look at how each person took ownership on the deed. Look for “Joints Tenants.” Where it is Joint Tenants, the ownership percentage of the person who passed away will automatically transfer in full to the remaining person(s) on the deed.

Example:

Where you find “Tenants in Common,” the ownership percentage will NOT transfer to the remaining person on the deed but to some other person. This person is typically identified in a Will. In this case, probate is almost inevitable but talk to an attorney.

Where there is a remaining person on the deed, all persons must agree to sell the property where you desire to do so. It is possible to sell a controlling interest in a property where the property was held in Tenants in Common but to be clear; this does not change the ownership of the other people remaining on the deed. They control their interest in the property, which cannot be sold without their consent.

Please note that there are other ways one can take ownership of real estate. Where some other word is used to describe their ownership, see an attorney to learn more.

Where probate is required, it’s a relatively simple process to get started, and you can do this yourself; make sure you complete the forms correctly, or things will not go smoothly.

You cannot sell or sign contracts associated with the property (you do not own or control) in the probate process UNTIL you receive the Orders and Letters from the court. One of the first things the court does is to determine who Probate Administrator will be. (https://frascona.com/what-is-probate-administration/) Then the court will issue documents called The Orders and The Letters, which declare who the Probate Administrator (Personal Representative) official is. Once you have this, and only when you have this, can this person sign contracts to put the property up for sale. Before this, you can prepare the property, take pictures, etc. You can NOT sign contracts; you do not have the right to do so until you get these. While probate works through, you can sell and close on the property with the new buyer, but you can NOT distribute the money from the sale to heirs yet; you must hold those funds to pay the debts identified as part of the probate process.

As I mentioned, the above has been significantly simplified to provide a broad understanding of the process. Please call us at 719-212-4911 to discuss your situation in more detail and flush out your path forward.

Probate and where to begin in Colorado - Chris Wojciechowski - Home...