How Do I Know If I Need To Probate A Property In Order To Sell It? You may not know if you need to probate property to sell it. The laws surrounding the distribution of property after a loved one passes away are complex. Unless you have legal experience, it can be challenging to understand these laws, especially when you are grieving the loss of a family member. It can be easy to make a mistake.
If you lost a family member and don't know whether you need to probate their property to sell it, you may wish to consult a real estate lawyer. A lawyer with experience handling cases like yours can evaluate your situation and determine whether you can sell the property without going through probate.
Whether You Need to Probate a Property Depends on Your Situation
Before getting into what probate is and how it works, here’s what you need to know:
- The information present in your case determines whether probate is necessary. The decedent’s will, property deeds, and titles will dictate what comes next.
- A lawyer can help you navigate the complexities of managing your loved one’s affairs after their passing, including the sale of any property.
- Most people want to avoid probate because it’s time-consuming, and they want to distribute or sell assets immediately. Yet, it could offer an avenue for settling one’s estate and moving forward.
It’s easy to get caught up in probate and everything it entails. This is why many families opt to work with lawyers. These professionals can iron out your case’s details and advocate for what you rightfully deserve.
What Is Probate?
Probate is a legal process that deals with the estate of someone who has passed away. The estate includes real estate property as well as bank accounts, investment accounts, life insurance policies, annuities, and individual retirement accounts. The probate process will identify the deceased party’s assets and debts, pay any debts, and distribute the remaining assets to the beneficiaries, who may or may not be named in a will.
There are generally two types of probate:
- Formal administration. Formal administration is complex and applies to large estates.
- Summary administration. Summary administration only applies to estates of people who passed away more than two years ago or were worth less than $75,000.
Probate can be expensive, and it can also take time, which is why some people try to avoid it. If you don’t have to probate a property before selling it, you could save time and money. A lawyer can evaluate your case and let explain whether you must probate the property before selling it.
Not All Property Must Go Through Probate
Some properties do not need to go through probate. If your family member set up a living trust, or for example owned property jointly, then their property will automatically pass on to a specific person upon death. Here is more information on these situations:
Property Held by a Living Trust
According to state law, a living trust, which can also be referred to as a revocable trust, is a way to protect real estate and other assets from probate. If your family member created a living trust and transferred their property to the trust during their lifetime, then you may not need to probate the property to sell it.
Because the living trust owns the property, it should not need to go through probate. However, in certain situations, such as when a trust is not fully funded, probate is still necessary. A lawyer can help you determine whether your relative’s revocable trust protects the property in question from probate.
Jointly Owned Property
Only property owned by your family member in their individual name must go through probate. Any property that your family member owned jointly with their spouse does not need to go through probate. Additionally, property owned with rights of survivorship with a spouse or another party does not need to go through probate either.
Jointly owned property should pass directly to the survivor. The survivor of jointly owned property should not need to probate the property to sell it. Consult a real estate attorney if you still have questions about the ownership of your property.
Do I Need to Probate a Property if There Is No Will?
You may need to probate a property if your family member did not leave a will specifying who should inherit the property after their death. If the property in question was jointly owned or in a living trust, then ownership will automatically pass to the trust, survivor, or beneficiary upon the owner’s death, even without a will. Here, probate should not be necessary to sell the property.
If the property in question was individually owned by your family member, and they did not leave a will, then you will have to probate the property before you can sell it. Under state law, any part of the estate that is not specifically passed on to a beneficiary in the will is distributed to the decedent’s heirs. The property will first go to a surviving spouse, then to surviving children.
In situations where the decedent left a surviving spouse, as well as surviving children from another relationship, issues of inheritance can become complex. A lawyer can help you determine how state laws affect your situation.
What Happens During the Probate Process?
If you must probate the property to sell it, here is an overview of the process.
First, you should obtain a death certificate for your family member and locate their will if there was one. You must file a physical copy of the will with the county court. Your lawyer can file the will on your behalf. A judge will review the will and explain if it’s valid.
Then, the judge will appoint a personal representative, often referred to as the executor of the estate. The personal representative must take an inventory of the decedent’s estate. This inventory must include real estate, individual bank accounts with no co-owner or designated beneficiaries, and proceeds from a life insurance policy payable to the estate. The representative must also notify the decedent’s creditors, who have three months to file a claim with the probate court.
The personal representative must pay all valid creditors who filed with the probate court on time. Then, the representative must file and pay income taxes for the estate. Once all debts, taxes, and legal fees have been paid, the personal representative can distribute the estate according to the will left by the decedent. This distribution may include selling the house and distributing the proceeds to the beneficiaries.
If that seems simple enough, it is an extremely short summary. You don’t just go to court and get a decision. The process can take as long as a year. It involves a series of 14 different pleadings, starting with the filing of a petition for administration.
The complex process requires careful attention to detail that non-lawyers lack the time and training to complete. The errors people would make by going through probate without a lawyer could cause lengthy delays as they must correct and re-correct mistakes on legal filings that can annoy the court.
A lawyer can more than pay for themselves by doing all of this work for you, correctly, the first time, expediting the process and removing all of your legal headaches surrounding probate.
These are not tasks to take on yourself. Hire a lawyer to do them for you.
A Summary Administration Can Save Time and Money
If your family member passed away recently or had a large estate, then you will have to go forward with formal administration. However, if your family member passed away more than two years ago or if the value of their estate was less than $75,000, then you can proceed with a summary administration.
Any beneficiary or person nominated as a personal representative can petition for a summary administration. If the decedent left a surviving spouse, they must sign and verify the petition. Other beneficiaries may have to sign it, as well. A lawyer can help you identify everyone who must sign the petition.
Summary administrations are simpler, so they tend to take less time and cost less money than formal administrations.
How Can a Lawyer Help You With Probate?
A lawyer can help you with the complex process of dealing with property after the death of a family member. A lawyer can assess your case and determine whether you need to probate the property in question in order to sell it. You may not know whether the property was held in a trust, jointly owned, or individually owned, but a lawyer can research its ownership for you.
If you must probate the property first, a lawyer can assist you with every step.
Your lawyer can:
- File the will and any other required paperwork at the county court for you
- Inventory the estate
- Place an ad in the newspaper to notify creditors of your family member’s death
- Identify and pay off debts and creditors of the estate
- Help you distribute assets to the beneficiaries
- Meet legal deadlines
- Follow the wishes of the deceased based on the will
- Follow state laws if there is no will
- Assist you if any beneficiaries question the will
- Guide you through all duties and responsibilities of a personal representative
Selling property after a family member dies is a complex process, but it does not have to be stressful. Working with a lawyer who has handled other cases like yours can help you feel confident in your decisions and comfortable going ahead with a property sale.
How Much Does It Cost to Probate a Property?
There are several expenses associated with probating a property, which is why people may plan ahead to avoid probate. Families may avoid probate with a living trust.
If you must probate a property in order to sell it, you will have to pay filing fees with the court as well as fees for the attorney. You may also have to pay a fee to publish a notice to creditors in the local newspaper.
Fortunately, you do not have to pay these fees out of your own pocket. You can use the money from the decedent’s estate to pay these fees, as well as their funeral and burial.
How Long Does It Take to Probate a Property In Order to Sell It?
If you need to probate a property in order to sell it, you probably hope to get through the probate process as quickly as possible. Many factors can influence how long this process takes. For example, if the beneficiaries argue about who should be the personal representative, whether the will is valid, or question the distribution of the estate, the process will take more time.
In general, it takes eight weeks to go through probate for a summary estate administration. Formal estate administration can take longer. First, a personal representative must be appointed, which can take four to six weeks. Once appointed, the personal representative will work on distributing the estate, which may take up to a year. Complex cases, such as cases that include a wrongful death lawsuit, can take even longer.
Every case is different and depends on a variety of factors. A real estate lawyer can estimate how long it will take your case to go through probate based on its specific details.
You Have Legal Options Whether a Property Goes to Probate or Not
Every case is different, and probate cases are very personal. Selling your loved one’s home can be very emotional, especially if you have memories attached to the property.
If you don’t know whether you need to probate a property to sell it, consult a lawyer about your legal options. Many firms that handle real estate matters offer no-obligation consultations where you can learn more. Reach out to a probate lawyer.