Question: Is my deed valid? My grandfather passed away in Florida. He owned a house in Georgia. My mother was named the representative and sole beneficiary on his Will. She sold me the house before starting probate. The Will states that the representative has, “the full power without any court order or proceeding to sell any real or personal property belongings without regard to the necessity of such sale for debt, taxes, etc.”
Is my warranty deed valid? Will the title be clear when I try to sell the property? Do I need to also file the Will and death certificate?
Loraine’s Answer: It appears from your description that your grandfather may have been domiciled in Florida but owned a piece of land in Georgia, and that your mother, who is nominated as his Executor but has not yet had his Will admitted to probate, signed a deed to that Georgia property over to you.
If your grandfather owned the Georgia property in his individual name and not through any kind of Trust of which your mother became the Trustee, either before or at the time of your grandfather’s death (or he owned it through an entity of which your mother became the legal controller at some point before or after his death), the deed you have is likely not valid. No one has the legal right to transfer property in Georgia if the property owner is deceased and has a Will that has not yet been admitted to probate.
The Will has to be admitted to probate before the Executor has any legal power to make a deed and transfer property out of the estate. The language you mention in the Will normally means that the Executor does not have to petition for court approval to sell or distribute property AFTER the Will has been admitted to probate and the Executor given Letters Testamentary. It does not mean that the nominated Executor can just act before that point.
None of this should change just because your grandfather lived in Florida; his Will would still have to have been admitted to probate in Florida before his Personal Representative (another name for the Executor or Administrator of an estate) can transfer the property in Georgia. The Will does not also have to have been admitted to probate in Georgia first, but it still has to have been admitted to probate in the home state before there is a legal representative of the estate who can transfer the estate’s property.
Key Estate Planning Takeaway: A decedent’s Will must be admitted to probate in his or her state of domicile before any property from the decedent’s estate can be sold, deeded, or otherwise transferred to another person.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
