Probate real estate is the property of a deceased owner that is going through the legal process to transfer ownership or sell. During this emotional time what to do with this property presents challenges for loved ones. Should you:
- Sell the house, use the money to pay expenses, and then distribute proceeds to beneficiaries
- Keep the house and live in it
What is the best course of action depends on your specific situation. You should take time to learn the process and get sound legal advice before you make any decisions, especially during this emotional time.
What Does Probate Real Estate Mean?
Probate is the legal process where an executor administers a deceased person’s will. Often, they owned a house. Investors look for these properties because of many heirs:
- Don’t want the property
- Can’t afford the costs associated with inheriting it
These reasons make many people eager to sell the inherited property as soon as possible. Investors look to take advantage of the situation and get lucrative deals.1
Why Would a House Go to Probate?
A house would go to probate for a variety of reasons, but mainly because there are questions about ownership or beneficiary. Here are 5 reasons that a court puts a house in:
- Deceased didn’t have a will
- Will is invalid
- Deceased owned the property solely
- Deceased owned the property as a tenant in common or joint tenancy
- No Beneficiaries
Basically, if anyone has a question about how ownership will be passed, then the courts step in and settle issues.2
Who Pays Mortgage?
Either the estate, under the direction of the executor, or the person designated in the will to inherit the property makes mortgage payments. As you can imagine, the process often gets complicated. However, people handle mortgage payments one of three ways.
- If there is not enough money to cover expenses, then the executor may sell the property
- A beneficiary who does not inherit the property pays this bill and is reimbursed
- The beneficiary named in the will to inherit the property continues to pay the loan and is not reimbursed.
If a person inherits a property, they may assume the mortgage during or after probate. Federal law prohibits lenders from foreclosing on a property that changes ownership due to death. To qualify, though, the deceased owner must be current at the time of death.3
Keep House Out of Probate
You have options to keep your house out of probate. Three good ways to accomplish this are:
- Write a living trust
- Name the beneficiary you want to inherit your home in your will
- Set up a joint tenancy with a right of survivorship
If you don’t want your heirs to deal with confusion about what to do with your property take steps now to properly distribute it. We recommend that you make an appointment with an estate planner and find out the best way to smoothly pass on your property to your love ones.
Sell Probate Real Estate
How you sell a probate house is different from a regular transaction because it involves courts. The general process will include similar steps:
- Get an appraisal of the property
- Petition the court to sell the property
- Place the house for sale and accept an offer
- Collect a deposit (usually 10%) before the court hearing
- Advertise the sale with the offer price
- Attend the hearing where the court will entertain bids against the offer until confirming a winner
- Complete the sale by closing the contract
This is a generic list, and courts in your area may do things differently, but they will have a similar process. Regular transactions are complicated, and these are even more difficult and emotional. Therefore, we highly recommend that you hire a realtor with experience in this area. In fact, the U.S. Probate Services offers a certification, Certified Probate Real Estate Specialist (CPRES) to help you find qualified professionals to help with the transaction.4
Who is the Seller?
The seller in a probate sale can be confusing. This is because the property wouldn’t be in if there wasn’t some ambiguity about what to do with it. Having said that, three entities may sell the property while it’s in:
- An executor
- An administrator
- The court
The will names the executor, and he/she manages the distribution of assets. Administrators manage the estate when it is intestate with heirs, and the court appoints them. The court will sell the property if it is intestate and there are no heirs.5
Sale Before Probate Granted
You can put a house up for sale before probate is granted, but only under certain conditions. Even if the person has a will there are usually taxes, creditors, and maybe beneficiaries who make a claim. Each state has its own laws for these issues. FindLaw.com has a list of these laws for each state. However, there are times when you can sell the house without going through it if you:
- Set up a living trust
- Have a joint tenancy with a right of survivorship
- Are a surviving spouse in a community property state (there are only nine)
If you sell a house before without legal authority you could face lawsuits from other beneficiaries and criminal charges from the state.6
How Long does Selling Probate Real Estate Take?
How long probate lasts depends on your state’s laws and the will’s complexity. The estate’s value determines the length of the process. However, the Uniform Probate Code streamlines the process if you live in a state that adopted it.
Move Into a House in Probate
You can move into a probate house if the will names you and gives you the property. However, it may not be a good idea because legal issues may arise:
- Someone contests the will
- Insufficient funds in the estate to pay expenses, debts, and/or taxes
Unless there are extenuating circumstances you should wait out the period and work with the executor. There are too many legal questions that may cause you problems. No matter what your decision you begin by consulting an attorney familiar with probate law in your state.7
Final Thoughts on Probate Real Estate
Probate real estate presents a host of challenges when a loved one does if the estate is not in proper order. Even if a will is in place beneficiaries, creditors, and the government may look for money. In fact, the bigger the estate the more likely that people contest the will.
You can make the process much easier for your loved ones with good estate planning. We strongly recommend that you meet with one and take the time to make an estate plan. The more money and assets you have, including your house, the more important this is.
