As the only heir, can I sell my mother's home prior to receipt of her death certificate?
My parents jointly owned their Tennessee home. My father passed 4/2013 without a will. My mother lived with me from 7/2013 - 3/2017. My parents participated in the Medicaid waiver program in Tennessee. My mother participated in the Medicaid waiver program in Georgia until 3/31/2017. She entered a nursing home in Georgia on 4/3/2017 - 6/17/2017. Her Tennessee home was listed with a realtor for almost 2 years without a potential buyer. My mother passed on 7/23/2017 and miraculously a buyer put a contract in the home $15k 2 days after her death. I was distraught and emotionally distressed when this contract was presented. I blindly signed the contract after feeling pressured to act quickly although I was deeply involved in planning my mother's funeral. Granted I understand ignorance of the law is no excuse but I came to my senses a few days before closing and told my realtor I did not want to sell the house (closing date was set for 8/11/2017 pending receipt of death certificate). There were many areas of the contract I didn't understand. Contract listed my mother and myself as sellers and funds were to be held in escrow by a title insurance company for 6 months to a year to allow for claims from creditors. I don't know and didn't know if I could legally sell the house. The buyer accepted her earnest money back but want me to pay her in excess of $1200 for expenses and breach of contract. Also $600 of this amount is for fee for expediting the buyer's loan. My questions are:
1) can I actually sell the home as sole heir when my name is not on the deed and the deed is in both my parents name?
2) does not having the death certificate play a role in selling the home?
3) does buyer still have a binding contract after accepting her earnest back?
4) can I be forced to sell the home?
5) how or what impact will Medicaid estate recovery play in potential sale of this home.
Ok so dad died 2013 with out a will. He died intestate. Do you know if TN law allows mom as surviving spouse as owner? If so, was title changed to moms name with paperwork done & filed at the courthouse so that the tax assessor & tax collector shows the change? If not, there's going to be clouds on the title & they have to be cleared or "lifted" before any sale can happen. You mention deed is in their name, so I'm guessing even though dad died in 2013, the ownership never got changed. Is this right? If so, the Realtor failed to do a basic vetting on the property. Listing Agreement probably wasn't valid. Stuff like this can be fixed but will take time if they are alive to do. But as moms now dead, all this turns into an asset of her estate situation which needs probate to deal with.
Dad was on Medicaid, right? So what was / is the status on any lien or claim by TN Medicaid for dads Medicaid paid expenses? Your mom moved 3 or 4 mos after he died. Was somebody getting the mail & getting all to mom? I'd be concerned that an TN MERP (estate recovery) NOI (notice of intent) was sent to mom but was not responded to as she was now in GA. And TN MERP placed a lien on the house as no response. If so, it too places a cloud on the title. A title search will unearth all this. What did title search show?
The expediting buyers loan sounds fishy. You weren't in any rush, it shouldn't be sellers expenses. Jeez it was on market 2 years, why rush now? Was your paying this one of the items pressed upon you to sign off on? Did the "buyer" have a their own Realtor?
Now the breach of contract $$ does happen. Usually contact has a 30 day period in which either party can stop sale or ask for an extension. Earnest returned, no harm no foul. But if not, buyer can ask for a payment as per terms in contract. Look at the contract to see what's allowed. I'd be concerned that it's being done purely so the "buyer" can place a lien on the property to pressure you to sell house for even less. "buyer" is a shyster.
Now the whole buyer showing up right after death also sounds fishy. It can't be sold by just providing death certificate is my understanding. You can't sign it as you don't own it. It's an asset of moms estate and has to be done however GA laws for death / probate run with judges orders signing off. You as executor will probably need to file a foreign will action in TN with the TN house included as an asset of her estate in GA. How GA medicaid recovery deals with asset that has TN Medicaid recovery as well, I have no clue, but it's going to be complicated.
Is the house really worth just 15K?
Property exchanges should go through attorneys. They make sure the title is clear and all the legalities are taken care of. They check for taxes, mortgages, liens, etc. The first thing I would do since you are at this point is to see a real estate attorney and check how to proceed.
Selling property is seldom a DIY project.
My gosh, you have a complicated case here. Yet how many of us know the laws inside and out after a person passes. One would need to be a Philadelphia Lawyer to understand it all. Even your Realtor wouldn't know, as by rule they can't practice law, thus give legal advice.
My suggestion would be to make an appointment with an Elder Law Attorney to see what are your obligations as they stand. Such as, will you need to go through with the sale of the house as per a signed Contract as the Buyer did their part of the Contract. And if the Buyer takes back the earnest money AND signed a Release of Sale Contract, then the Contract is void. The Attorney may have ideas on how to keep the Buyer, like maybe they can rent the house and close on it later, just a thought. Or they could close now. The Elder Law Attorney can advise you as State laws are different.
Hope this all works out.