If your loved one owned real estate, you may need to go through the probate process once they pass away in order to properly transfer the title of a home or sell it.
Probate has a reputation for being a long, drawn out process. And, it can be, if proper steps aren’t taken or you embark on the process without being informed.
In this article, we’re going to explore the basic process of probate, answer some of the common questions, and most importantly, talk about how to sell a home in probate.
Disclaimer: This article is purely informational and is not meant to be legal advice. If you have any questions, please consult a probate attorney.
What Is Probate?
In simple terms, probate is the legal process that ensures the assets of a deceased loved one are properly and legally settled and distributed.
It’s easy to believe that probate is only required when there are no heirs or a will. But hold up, because that’s not true. Most states have very specific laws regarding probate and only certain circumstances qualify for when it can be avoided.
Ignore or violate these rules and you could have a disastrous lawsuit on your hands.
In regards to real estate, unless specific action has been taken, like estate planning, a home will almost always pass through probate. Yes, even if there is a will. However, it may not be the long, drawn out process many believe it to be.
The Probate Process
The first step in the probate process involves finding a will, if one was left. The specific probate process you will have to go through will vary based on your state and whether a will was left or not.
From there, you may find it necessary to find an attorney to represent through the probate process. A good probate attorney is your ally and will help you through the complex and legal system. It’s up to you to decide if you need one or not. It’s always a good idea to at least contact an attorney to discuss your specific case.
There are instances where the probate process is simple enough to handle yourself without the need for an attorney.
Next, you need to file a petition with the local court office. It’s important to start this process right away. Without it, the probate process hasn’t officially started. The costs to file are typically marginal. Maybe around $25 to $30 in most areas.
Will or No Will?
If a will is present and has been proven valid in the court, then often the executor can simply administer the estate according to the will left by your loved one. This process is often referred to as testate probate. This is often a pretty straightforward process unless a person’s estate is complex.
If there is no will, that’s where things get tricky. In the case of no will, you will need to go through an administrative proceeding. Here everything needs court approval, even selling a home.
If the estate is intestate or does not have a will, usually that estate will have to go through the formal probate process. This means that the court controls the entire sale and bidding process for the home.
In this process, the home that is left in the estate will need to be appraised, a list price will need to be approved, and the home can finally be listed. Even during this process, there are strict requirements on the types of offers that can be accepted and the offers will also need court approval.
When Can I Sell A Home In Probate?
If the estate requires probate, which most of the time it does, then it’s illegal to do anything with the assets — even something as simple as cleaning the house — until you’ve been legally appointed as the executor or personal representative for the estate by the probate court.
Just because there is a will and you may have been named the executor does not give you authority to go out and list the house. You will need approval first.
Figure out probate, then you can think about getting the house listed.
Testate Probate Real Estate Sales
If a will is present, then you may be able to petition the court to sell the home yourself, outside of probate court.
The benefit to this is that it allows you to sell the home without court involvement. Making the process faster, easier and less expensive. You won’t have to pay the court fees and you can go through a more traditional home sale.
To verify you can do this, you will need to check with a probate attorney.
Intestate Probate Real Estate Sales
If there is no will, you will go through the formal probate process, often called intestate probate. This means the court controls the entire sale and bidding process for the home.
The general process involves the executor getting an appraisal done on the home and finding a top real estate agent to work with.
Your attorney can sometimes make a good recommendation, but it’s up to the executor to pick a skilled agent who can list, market, show, and ultimately sell the home while understanding the complexities of the probate process.
Once the home value has been determined, it will be listed at an approved and agreed upon price. The real estate agent will market the home and receive an offer.
With an accepted offer in hand, it becomes a waiting game. You will wait for the court to approve the offer and sale of the real estate.
Waiting periods and finalization procedures vary by state, but know that even after an offer is finalized and accepted by the court, it may be at least a month before the home is legally sold.
Find the Right Advisors in The Probate Process
Probate real estate can be confusing and complicated, which is why we believe it’s so important to work with real estate agents with probate knowledge and experience.
It’s easy to get overwhelmed throughout the process, even if you’re not planning to sell the real estate that is being inherited.
We’re here to help you, as a real estate agent, navigate the probate process when it comes to selling a home. Whether you need to go through the informal or formal process, we can help you sell a home that you inherited.
The Dolinski Group focuses on helping clients who have inherited homes or homes that are in probate, a trust, or conservatorship. Let us help you today!
