Can the second wife sell?

[Ori Skloot]

Hey Folks,

Anyone able to help with this scenario?

Property is bought by a man with a wife and children.His wife dies.He later remarries and then he dies without a will (while still married to his second wife).There has not been any probate. The children are nowhere to be found. Property is still under the man’s name, can the second wife sell it (through title company with title insurance)?

[Mark Pedroza]

@Ori Skloot

In order for the second wife to legally sell she's going to have to file for "Notice of Petition to Administer Estate".

After notice is publicized administration will have started. 

After she files she will be given a court date in 30-45 days (I know, I know) where she'll petition the court for Letters of Administration. If decedent had a will Letters of Testamentary would be requested.

With this court-mandated document this will give the spouse legal capacity to sell the property as title will also be able to insure. Without it title can't insure without proof of her ownership.

Her responsibility (fiduciary) will also include doing her best locating the decedents other heirs from his prior relationship. As they would also have an interest in the subject property. 

in the meantime you can word your contract "subject to" the spouse being confirmed PR to the estate.

(Ori Skloot makes this offer on subject property subject to Mark Pedroza being confirmed by the court as PR of the John Smith estate)

If all parties agree on the sale price then the attorney will file Notice of Proposed Action.

After publication the estate will start receiving marketing letters from investors as well as real estate agents.

But what could be a "deal killer" is if a family member, for whatever reason (disdain for the PR, infighting between family members, etc. etc.) signs Objection to Proposed Action. (same document).

This process (probate) will probably take 8-12 months after she files sad to say. 

Good luck....

(This is not legal advice nor am I an attorney but I as an heir at onetime I was involved in my own family probate matter.)