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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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My mother died in 2012. She left a will that wasn't

Customer Question

My mother died in 2012. She left a will that wasn't probated. In Jan. 2015, my step-father gifted my husband and me the house I grew up in. He signed the deed over to us and provided a quit claim deed to the house. My lawyer saw that as being sufficient for us to sell the house. We have a buyer, but their lawyer insists the will be probated, an executor's deed provided and a warranty deed (which we've provided). He's claiming that the house wasn't legally gifted to us. I'm very confused and hoping a second lawyer can perhaps explain this in a way I can understand.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

What the buyer's attorney is concerned about is that by skipping probate, your mother's interest in the home was never properly transferred (to you, or to anyone else).

While your attorney may have been satisfied with the transfer, their opinion is based on a risk analysis of the possibility of someone else challenging the deed (meaning they are evaluating your situation and making an educated determination as to whether or not it is likely that another individual will make a claim to the property - for example another sibling or heir to the property). Your attorney is weighing this possibility against the time and expense of going through probate (and potentially you are avoiding a tax payment as well - I don't know this).

If your buyer refuses to budge on this, you will need to decide if you want to go through probating your mother's estate (which will greatly increase your transaction costs of selling the home - as well as take a lot more time), or if you simply want to find another buyer who is willing to accept the deed (and the same level of risk that you have).