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Probate without a will


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#1 radditash

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Posted 20 February 2013 - 09:13 AM

If a piece of land has both a husband/wife ownership, is it legal to sell land if you are the survivor and probate has not happened?

#2 harrylime

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Posted 20 February 2013 - 09:27 AM

What state?

And how exactly was the property owned? Tenants in common? Joint tenants with right of survivorship? Tenants by the entirety?

#3 Guest_FindLaw_Amir_*

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Posted 20 February 2013 - 12:08 PM

How is the property owned according to the deed?

#4 radditash

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Posted 21 February 2013 - 07:08 AM

State Of Missouri. Deed written out his name/her name. Owned and paid for land

#5 harrylime

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Posted 21 February 2013 - 07:30 AM

Missouri recognizes a form of ownership called tenancy by the entireties - a form of ownership that is available only for property owned jointly by married couples. And, from what I read, the presumption in Missouri is that property jointly owned by marries couples is owned in tenancy by the entireties unless specifically stated otherwise. One of the features of this form of ownership is that it includes the right of survivorship.

Therefore, sole ownership would have passed to the surviving spouse by operation of law rather than through probate.

My experience has been that the surviving spouse would only have to present the deceased spouse's death certificate as evidence that the surviving spouse has sole ownership and legal authority to sell the property. I don't know if that is the case for Missouri. The surviving spouse should probably check with a local real estate attorney and/or a title company to be certain what will be acceptable proof that the surviving spouse has the right to sell the property. At the end of the day, it is what the buyer's lender and the title company (and the buyer's attorney, if the buyer has one) will accept.




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