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When Do You Need a Probate to Sell a House?

For Sale sign in front of house. When do you need probate to sell a house?

If you’re thinking of selling a home that was owned by someone who passed away, it’s important to know when you need to start a probate to sell a house. Probate is the legal process of transferring the ownership of property held in a deceased person’s name to others as specified in a Will or according to state law. Understanding the process for probating a house can help make sure everything runs smoothly so you can start your new stage in life as soon as possible.

Understand the Role of Probate

The process of probating a house involves officially transferring ownership of the property in accordance with the deceased individual’s will. The local court will appoint a Personal Representative (executor) to oversee the process and manage the assets according to the deceased person’s final wishes. It is important to remember that probate does not always involve selling the house. If there are family members or close friends inheriting the house, they may agree to keep it rather than selling it.

Obtain Court Authorization for Executing the Sale of the Property

Having the court appoint a Personal Representative (also known as executor) with authority to sell the house on behalf of the estate is usually the first step in probating a house. To obtain court authorization, you will need to file certain documentation with the court’s probate division. Once the court appoints a Personal Representative, he or she will be able to pursue selling the property on behalf of the estate. In most states, the Personal Representative will need to obtain Letters of Personal Representative from the court. A certified copy of those Letters gets recorded with the local County Recorder showing that the Personal Representative is authorized to sell the property.

Know What Documents You Need to File For Probate.

When it comes to probating a house, you’ll need several documents. Some of the most important documents include the original will (if there was one) and a list of heirs or beneficiaries. Understanding what paperwork you need before you start is key to making sure everything goes as smoothly as possible. We suggest contacting a local probate attorney to help you. (If you’re in Arizona, we can help. Give us a call at 602-443-4888.)

Can You Start to Sell a House Before Probate?

While it is technically possible to start the process of selling a house before probate, it is not a recommended practice. Here’s why. If you accept an offer on the house before having the legal authority as Personal Representative, the sale might not be able to occur. Sometimes getting appointed as Personal Rep only takes a couple of days. But sometimes it takes weeks or even months (especially if the heirs or beneficiaries don’t agree). Therefore, it’s best to wait until after the court appoints you as Personal Representative you move forward with selling a house.

How Do You Sell a House If More Than One Person Now Owns the House?

If more than one person owns the house you are trying to sell, it can be tricky. The owners may not all agree on selling the house. If that’s the case, you may need to ask the court for a partition. That means the court will order that the current occupants move out and for the property to be sold. We discuss the partition process in our blog “What To Do When Sibling Won’t Move Out of Parents’ House.”

This can be a complication situation. We suggest contacting a probate litigation attorney to help you.

What Deadlines Apply When Selling a Deceased Person’s House?

After someone dies, there are certain deadlines for selling the house. It gets more complicated after two years, because then a Personal Representative no longer has the ability to simply sell the house, but must simply transfer it to the heirs or beneficiaries in the will. See A.R.S. Section 14-3108. Also, if someone moves into the house, they can acquire title by adverse possession or other state laws.

Additionally, depending on where you live, there may be a deadline for when all state or federal taxes on the sale must be paid. It is important that these deadlines are met in order to ensure that the funds from your sale can be quickly distributed to any beneficiaries once the sale is completed.

Determine Which Assets Go Into Probate

Before beginning the process of probating a house, it is important to identify which assets go into probate. Assets that must go through probate include any stocks, bonds, bank accounts, real estate, and personal items owned by the deceased person. An attorney can help you determine which assets must go through the probate process. Additionally, the executor should collect all necessary documents such as death certificates, wills, and proof of ownership in order to start the probate process.

Have More Questions? We Can Help.

If you have questions about how or when to file a probate to sell a house, we can help. We’ve been handling probates since 2003. Call us at 602-443-4888. We’re here to help.

 

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

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