One of our investor students told us of an interesting probate deal or “adventure” they're working on now and while it's a good story, it also illustrates lots of the ins and out of probate or estate issues and purchases. The Seller (we'll call him Scott) co-owned this house with his mom, and he co-signed on the loan with mom. Mom has been deceased for 3 years now.
Scott says his sister lives there and is not making the payments, so the mortgage is behind 6 months in payments, and he's ready to sell the house. He said Mom left no will for her estate, but there are 6 other siblings. If that's not enough of an investing adventure for you yet-Scott then tells us that the bank is threatening foreclosure. They're not just threatening. we discover that the house is scheduled to go to the courthouse steps in 3 weeks. Why would anyone even try to purchase a mess like this with a short timeframe? Well, Scott owes $33,000 + $5000 in back payments on a cosmetic, light fix-up $10k rehab house that's worth about $140,000 when it's all fixed up. So let's do a little math to see if there's just a wee bit of profit in it.
So the max we could afford to offer on this house is $84k, and he has to have $38k to cover the mortgage and the back payments, say another $35k so that each Scott and every other sibling/heir gets $5k profit too. That's a total of $73k, still leaving $11k EXTRA profit for the investor!! There IS big money to be made if you understand issues like these! Now, how do we work through the estate stuff. Well first we (or Scott) would have to negotiate this price with all the siblings to reach agreement on their share. Next they'd all have to verify that “mom didn't leave a will”. If so, Scott could petition the probate court to appoint him as Administrator of the estate and he'd have to run a notification of the estate ad, and get all the siblings to sign document agreeing to his being made Administrator. Now Scott could sign the Purchase Contract as “Scott, Administrator of the Estate of Momma”.
If the siblings said “no, Mom DID have a will”, then we'd spank Scott for fibbing, and see who was appointed as Executor of the estate in her will. That person would then have the court probate the will, and run an ad. Then the Executor would have to sign the Purchase contract as “[Name], Executor of the Estate of Momma”, and sell the house and distribute the profit to the sibling/heirs as described in mom's will. In the meantime, don't forget the upcoming foreclosure auction either. It's a race between the probating and the foreclosure to see who will hit the ‘finish line' first. So the investor (she can say she's a friend of Scott, just helping out) will need to talk to the lender or their foreclosing attorney, in order to stall the auction.
She'll need to get a ‘statement of account' to find out what the loan balance is, and also what the back payments, penalties and attorney fees add up to. These additional fees could be paid by the investor as preparation for a subject-to purchase. The risk is that if there is no will AND the sibling/heirs couldn't reach a quick agreement on price, she'd have to keep making monthly payments to the lender to prevent foreclosure but she wouldn't yet own it until (hopefully) the siblings reach agreement and appoint Scott as Administrator.
I can hear you saying “but the investor could try for a short sale purchase direct from the lender, and not worry about all these siblings and probate issues”, problem is she can't get all the borrowers (momma's deceased) to sign all the short sale paperwork, and she doesn't yet have the property successfully probated to have a new legal Adminstrator/Executor that could sign either. So no one can yet legally sell, nor sign short sale paperwork until either estate is probated or the lender forecloses and takes back ownership of the property, the clock is ticking we shall see.