As the Spring Selling Season Begins, Here Are Common Issues That Require Probate When Selling Your House
Spring is one of the busiest times of the year for real estate in the Kansas City metro. As the weather warms up, “For Sale” signs start popping up across neighborhoods like Brookside, Waldo, Prairie Village, Leawood, Overland Park, Lee’s Summit, and Liberty. Buyers are eager to move before the next school year begins, and sellers are hoping to take advantage of increased demand.
But every spring, we see the same issue arise—right when a home goes under contract, a title problem surfaces that brings the entire transaction to a halt and requires probate.
Many homeowners (and even some real estate professionals) assume that if a family member has been living in the home, paying the mortgage, or maintaining the property since a loved one passed away, they must have the legal authority to sell it. Unfortunately, under Kansas and Missouri law, that is not always the case.
Here are some of the most common probate-related title issues that are not discovered until a home is already under contract.
The Deceased Owner Is Still Listed on Title
One of the most common situations occurs when a property owner passes away and their name remains on the deed. This often happens when:
A surviving spouse continues to live in the home
Adult children move into or manage the property
Mortgage payments continue to be made from a joint account
Property taxes and insurance remain current
Because everything appears to be in order on a practical level, the legal ownership issue goes unnoticed—until a title company conducts its search after a contract has been signed. At that point, the title commitment may reveal that the last recorded deed still lists a deceased individual as the legal owner of the property. In neighborhoods throughout Kansas City—from historic homes in Hyde Park to newer developments in Blue Springs—this issue is surprisingly common.
When this occurs, the person attempting to sell the home may not actually have the legal authority to transfer ownership. Instead, a probate estate may need to be opened in order for a Personal Representative (in Missouri) or an Executor/Administrator (in Kansas) to be appointed by the Court with authority to sign closing documents.
This process takes time and can delay or even jeopardize the sale.
No Transfer-on-Death (TOD) Deed Was Ever Filed
Transfer-on-Death deeds are commonly used in both Kansas and Missouri to pass real estate outside of probate. However, if a TOD deed was never signed and recorded prior to the homeowner’s death, the property becomes part of the probate estate by operation of law. We often see this in areas such as North Kansas City, Raytown, and Independence, where homes may have been owned by the same individual for decades. Even if a Will exists, real estate does not automatically transfer to beneficiaries upon death.
Until the probate process is completed, heirs do not have legal authority to sell the property—even if everyone in the family agrees on the sale.
Joint Tenancy Issues
Sometimes, a deed reflects ownership by two individuals as joint tenants with rights of survivorship. In theory, this allows the surviving owner to inherit the property automatically upon the death of the other joint tenant.
But problems arise when:
The deed was incorrectly drafted
A prior joint tenant has already passed away
There is uncertainty about whether survivorship rights were properly created
The chain of title includes multiple deceased owners
In these situations, the title company may require probate documentation or a determination of heirship before allowing the transaction to proceed.
This can be particularly frustrating when a home has already been staged, inspected, and appraised—only to have the closing delayed due to unresolved ownership issues.
Heirs Cannot Agree on the Sale
Even when probate has been opened, disagreements among heirs can prevent the sale of real estate from moving forward.
For example:
One heir may want to keep the home
Another may dispute the listing price
A third may live out of state and refuse to sign necessary documents
In some cases, Court approval may be required before the Personal Representative can proceed with the sale. This often involves providing notice to interested parties and obtaining an Order authorizing the transaction.
Disputes like these can arise in any neighborhood—from established communities in Gladstone to growing suburban areas in Olathe—and can create significant delays for both buyers and sellers.
Planning Ahead Can Prevent Delays
Opening a probate estate after a home has already been listed—or worse, after a contract has been signed—can lead to missed closing deadlines, increased carrying costs, and potential loss of buyers.
If you are considering selling a home that was owned by a deceased family member, it may be beneficial to consult with a probate attorney before listing the property. Addressing ownership and title issues early in the process can help ensure a smoother transaction when the spring selling season is in full swing.
Disclaimer: This blog post is provided for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship with The Probate Law Center. Probate and real estate laws vary by jurisdiction, and the specific facts of your situation may affect your legal rights and obligations. If you have questions regarding the sale of real estate that may require probate in Kansas or Missouri, you should consult with a qualified attorney licensed in your state.