Having a properly prepared will that clearly states your wishes, is the most important part of passing an asset like the family home to your children.
Understanding the process by which real property is passed along to heirs, can give peace of mind to parents who are concerned about leaving a legal tangle for their children. In this case, as discussed in Newsday, “How can my children prove they own my houses after I die?“, a woman is concerned about her children being able to prove ownership of the two houses.
The executor will engage an attorney to file the decedent’s will in probate court. In many instances, it’s the same attorney who initially drafted the will.
After the probate judge reviews the document, he or she, more often than not, validates the will and issues “letters testamentary.” These letters authorize the executor to carry out the instructions in the will.
Children won’t be required to do anything to prove ownership of the houses. After the decedent’s will is probated, it’s a public document, and a buyer’s title insurer will verify that the sellers—in this case the four children—do indeed own the house.
A certificate of the court’s “letters testamentary” is the only document the executor is required to have, in order to legally sell your house and to distribute the proceeds in equal shares to the children. However, it’s not uncommon for a buyer to request a copy of the death certificate, although it’s really unnecessary, since it’s been filed with the court in the probate proceeding.
To ensure that the house in the second state passes correctly, the executor will want to retain an attorney in that jurisdiction to file for what is known as “ancillary probate”, before the house can be sold. That state’s court will ask the first court’s state for “exemplified” copies or official copies of documents that include the death certificate, the will, letters testamentary and the signatures of the probate judge and county court, where the will was initially probated.
A meeting with an estate planning attorney who is admitted to practice in both of the states where the houses are located would be an ideal situation. He or she would be able to explain the process in depth. It may also be helpful for the children to meet with the attorney and the parent, so that everyone understands what will take place.
Reference: Newsday (June 28, 2017) “How can my children prove they own my houses after I die?”