There are a couple of instances were a guardianship would be required in order to sale a home or a piece of property. This would be if there was a minor child (likely by inheritance) that held an interest in the property that was to be sold or if there is a mental competency issue with a seller. Some people need help managing their daily affairs because of their age, a disease or even a injury.
Guardianship by definition is the position of being legally responsible for the care of someone who is unable to manage their own affairs.
The person that has a guardian appointed to them is called the Ward. The Guardian is the person who is legally entrusted with the care of and managing of the property of another person.
For real estate purposes a Guardian of the estate must be appointed. Without a court order, the Guardian does not hold the authority to sell, mortgage or otherwise encumber any property owned by the ward. This would include signing a listing agreement with an agent. If the sale of the property happens without the appropriate order, it is not a valid sale.
So how do you sale property with a guardianship? There are very specific steps that must be taken before a Guardian can convey property. Once the court has appointed the Guardian for the Ward, he or she must file with the court an application for the Sale of the Real Estate. Once the court has reviewed the application to sell the property, they will issue the order granting the Guardian the power to sell the property. These two items should happen before the realtor begins marketing the property.
Some tips we have for Realtors dealing with a property under a Guardianship:
- Before marketing the property, find out how far into the Guardianship process the Guardian is in.
- Make sure the Guardian has the Order of Sale. (Remember without it they do not have the power or authority to sign a listing agreement.)
- Make sure all parties know of the timeline for closing since transactions with Guardianships can become complex.
If you have any questions please don’t hesitate to reach out to us here at Red River Title, we are always here to answer your questions.