What is needed by me and my siblings to sell property owned by my deceased parents?
04/09/2009 - Category:Wills and Estates - Intestacy - State: GA #15925
My parents passed away and I was approached by a gentleman who is interested in purchasing the property they own. My father passed away in 1991 and mother in 2006. I was told that since it's been more than two years I wouldn't have to have anything probated. However, I have lots of siblings and know that they to sign some type of form giving me permission to sale the property. Could you tell me what form that would be?
When a person dies, their assets are distributed in the probate process. If a person dies without a will, an administrator is named to handle the distribution of the estate after a petition to probate the estate is filed with the court in the county where the deceased resided. Heirs may disclaim property by a written disclaimer filed with the court.
To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a co-owner dies, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining owners. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and automatically will inherit the share of a deceased joint tenant by right of survivorship, without the requirement of going through probate.
There are various methods for disposing of the property of a decedent. If formal probate proceedings are unnecessary, a petiton for temporary administration may be made, and a court order will allow the sale of property. If all debts of the decedent have been paid (or if all creditors consent or fail to object after notice), if there is no other need for formal administration, and the heirs agree on how the estate will be divided, a petition may me filed with the court to declare that no administration is necessary.
§53-2-7 provides that title to both real and personal property of a decedent vests in an administrator upon appointment; title to real property no longer immediately vests in the heirs at law, as under current law. Title to real and personal property vests in the heirs at law if no administrator is appointed within five years of the decedent's death or in accordance with an Order Declaring No Administration Necessary upon its entry of record. Property will escheat to the state after four years, instead of five.
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The following are GA statutes:
53-2-7. (a) Upon the death of an intestate decedent who is the owner of....
(a) Upon the death of an intestate decedent who is the owner of any interest in real property, the title to any such interest which survives the intestate decedent shall vest immediately in the decedent's heirs at law, subject to divestment by the appointment of an administrator of the estate.
(b) The title to all other property owned by an intestate decedent shall vest in the administrator of the estate for the benefit of the decedent's heirs and creditors.
(c) Upon the appointment of an administrator, the title to any interest in real property which survives the intestate decedent shall vest in the administrator for the benefit of the heirs and creditors of the decedent, and title to such property shall not revest in the heirs until the administrator assents to such revesting. For purposes of this Code section, the assent of the administrator shall be proved in the manner set out in Code Section 53-8-15.
(d) Upon the appointment of an administrator, the right to the possession of the whole estate is in the administrator, and, as long as administration continues, the right to recover possession of the estate from all other persons is solely in the administrator. The administrator may recover possession of any part of the estate from the heirs at law or purchasers from them; but, in order to recover real property, it is necessary for the administrator to show, upon the trial, either that the property which is the subject of the action has been in the administrator's possession and without the administrator's consent is held by the defendant at the time of bringing the action or that it is necessary for the administrator to have possession for the purpose of paying the debts, making a proper distribution, or for other purposes provided for by law. An order for sale or distribution, granted by the judge of the probate court after notice to the defendant, shall be conclusive evidence of either fact.
(e) If an order has been entered under Code Section 53-2-41 that no administration is necessary, or if the administrator has assented to the vesting of title in the heirs, the heirs may take possession of the property or may sue for possession of the property in their own right.
53-2-51. (a) If no person has appeared and claimed to be an heir within....
(a) If no person has appeared and claimed to be an heir within four years from the date letters of any kind on an intestate decedent's estate were granted, the personal representative shall petition the probate court of the county in which the letters were granted for determination that property has escheated to the state. Such a petition shall set forth the full name of the decedent, the date of death, the fact that no person has appeared and claimed to be an heir, and the property of the estate which may have escheated to the state.
(b) Upon filing of the petition, the probate court shall issue a citation as provided Chapter 11 of this title, requiring the heirs, if any, to file any objection to the petition by a date that is at least 60 days from the date of the citation, and shall order notice by publication to all heirs of the decedent as provided in Code Section 53-11-4.
(c) If no individual files objection as an heir who is entitled to the property on or before the date set in the citation, the court shall order the property to be paid over and distributed to the county board of education to become a part of the educational fund.
(d) If an individual files objection as an heir who is entitled to property, such claim shall be tried as other actions before the court. In such case, no property shall be paid over or distributed to the county board of education until the claim is determined in such manner as to establish that any individual making the claim is not entitled to the property.
(e) When property is paid over or distributed to a county board of education, the administration of the estate shall be terminated following a final return and the granting of a petition for discharge.
(f) The proceedings shall be conclusive upon and shall bind all the heirs of the estate.
(g) All expenses incurred in the administration of such proceedings shall be paid from the property or proceeds of the estate.
53-1-20. (a) For purposes of this Code section, the term "property"....
(a) For purposes of this Code section, the term "property" includes any interest in property and any power over or right with respect to the property.
(b) Any person to whom an interest in property is transferred or who succeeds to property by contract or by operation of law may renounce the property in whole or in part as provided in this Code section. A person may renounce even if a spendthrift or similar restriction applies to the property renounced. Persons who may renounce include fiduciaries acting on behalf of an individual, such as personal representatives, trustees, conservators, or guardians, as well as duly authorized attorneys in fact, whether acting on behalf of an individual or fiduciary.
(c) A renunciation must be made by a written instrument that describes the renounced property, declares the renunciation and the extent of it, and is signed by the person making the renunciation.
(d) The written instrument must be received by the transferor of the property, the transferor's legal representative, or other holder of title to the property not later than the date which is nine months after the later of:
(1) The date of the transfer; or
(2) The day on which the person making the renunciation reaches the age of 21.
The instrument may also be filed in the probate court of the county in which proceedings concerning the transferor's estate are pending or in which they could be commenced and, in the case of real property, in the real property records of the county in which the real property is located. An instrument so filed in the probate court shall be conclusively presumed to have been received by the personal representative of the transferor's estate not later than the date of such filing, but earlier receipt may be shown.
(e) A person who has accepted property or any of its benefits may not renounce the property.
(f)(1) Except as otherwise provided by the will or other governing instrument, a renunciation shall cause the renounced property to pass as if the person renouncing had predeceased the decedent or, in the case of property passing upon exercise of a power of appointment, as if the person renouncing had predeceased the holder of the power, even if the acceleration of a contingent remainder or other interest results. A will or other governing instrument may otherwise provide expressly or by implication, but the fact that a remainder or other future interest following a renounced interest is conditioned upon surviving the holder of such renounced interest shall not, without more, be sufficient to indicate that such conditioned interest should not accelerate by reason of such renunciation. Notwithstanding the foregoing, solely for the purposes of the last clause of paragraph (5) and the last clause of paragraph (7) of subsection (c) of Code Section 53-2-1, any individual renouncing who is the only sibling or the only aunt or uncle surviving the decedent shall not be deemed to have predeceased the decedent.
(2) Renounced property that is the subject of an attempted outright gift shall be treated as an incomplete gift.
(3) A renounced power over property shall be treated as if such power had not been created with respect to the person renouncing such power.
(4) The expression in a renunciation of an intent or desire that the property pass to certain persons shall be considered merely precatory and shall have no legal effect unless specifically declared to be a condition of the renunciation.
(g) In every case a renunciation relates back for all purposes to the applicable date among the following:
(1) The date of death of the decedent;
(2) The date of the death of the holder of the power of appointment;
(3) The date the gift was attempted; or
(4) The date the power was created.
(h) This Code section does not abridge the right of any person to transfer or renounce any property under any other statute or common law. Any renunciation that is otherwise valid but fails to meet the requirements of subsections (c) and (d) of this Code section shall operate as a transfer of the property to those persons who would have received it had the renunciation met those requirements.
(i) Nothing in this Code section alters the duties of any fiduciary to act in the best interests of the person the fiduciary represents. This subsection shall not, however, limit the power granted by this Code section to a fiduciary to renounce property.
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04/09/2009 - Category: Intestacy - State: GA #15925
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