The realtor should let the customer know about the four steps that must be taken with court involvement, to set realistic expectations about the timeline.
A guardianship during a real estate transaction can be necessary for different situations. For example; when there is a minor owning a property through inheritance, or when a seller has a mental issue and is not be fully competent. A guardian is needed to handle these situations.
What Exactly is a Guardianship?
A guardianship is a court appointment which gives a person the authority to make decisions on behalf of someone who is not capable of making them; therefore, the guardian will be the person that takes the responsibility of the ward’s personal affairs the ward being the person who is not mentally or legally capable of managing their property.
This being said, the answer to our main question is positive: A guardian can sell the ward’s personal property. [Editor’s note: The law recognizes a distinction between “real” property (real estate) and “personal” property (clothing, etc.). For the purposes of this article, the property in question is “real property,” though it personally belongs to the ward.]
Minn. Stat. 524.5-313(c)(3) states that the guardian has “the duty to take reasonable care of the ward’s clothing, furniture, vehicles and other personal effects, and, if other property requires protection, the power to seek appointment of a conservator of the estate.”
How Many Types of Guardianships Are There?
Two types of guardianships exist; the guardian of the estate and the guardian of the person. When it comes to real estate, a guardian of the estate is needed.
It is important to mention that actions taken by guardians without a court order can lack total effect. A guardian of the estate should always have a court order to have the proper authorization to manage any sort of affair in regards to the ward’s property; such as sell, mortgage, and lease. Meaning, if a sale is made by a guardian without a proper court order, that sale is not valid.
Selling Property Requirements
The first thing that needs to be done is to get a guardian of the estate appointed by the court. Once this has happened and the guardian has the proper authorization, there are four required steps to follow.
Pre-Closing Steps
Step One. Application for the Sale of Real Estate
It is an application that has to be filed by the guardian with the court, to start a property sale.
Step Two. Order of Sale
The filed application will be reviewed by the court and if everything is correct, the guardian will be given the authorization to sell the property. It would be better if these two steps happen before a real estate agent begins to market the property of the ward.
Closing Steps
After steps one and two, the guardian can properly close a sale; however, the closing will be “into escrow” and the transaction cannot be funded unless two more steps are taken.
Step Three. Report of Sale
After the documents have been signed by the parties, the guardian has to file a Report of Sale with the court. Once the document has been taken to court, no changes will be allowed; therefore, all parties have to consent to not prorate on the date of funding.
Step Four. Decree Confirming Sale
The Decree Confirming the Sale is the court’s order that fully authorizes the property to be sold. After a period of waiting, the Court finally issues the order with the terms of the sale, and the waiting period is up to the court. For example, in smaller counties this can be more than 10 business days; and in larger counties, it is typically from 5 to 10 business days. The realtor needs to keep this timeline in mind to set a reasonable expectation for the customer.
This is the final step to take when a guardian is selling a ward’s personal property. After this decree is issued, all parties can proceed with funding.
What Realtors Should Know About Guardianships
A realtor should know how advanced the guardianship process is before they start marketing a property. The realtor must know if the guardian has the Order of Sale yet. As stated before, without this order, any contract signed by the guardian won’t be valid.
Also, if it is a ward’s property, the realtor should let the customer know about the four steps that must be taken with court involvement, to set realistic expectations about the timeline. They need to be aware that this process requires time.
Another important thing is to set the closing date far enough for the guardian to have plenty of time to get the Decree Confirming Sale.
If you made it this far, hopefully, you are now more oriented about closing a transaction that involves guardianship, which is not an easy task. However; if you need to know more about a guardian’s duties and not only regarding real estate, you can check Minn. Stat. 524.5-313 or contact an attorney.
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