Can You Sell a House Before Probate?
When a person dies, everything they left behind including their home acts as a sad reminder of their passing. It's no surprise that many heirs can't wait to sell their inherited property thinking it will help process the grief faster. But can they sell the house before it goes through the probate process?
You can list a house in the local market or get a cash offer before you are given the Grant of Probate. However, the sale won't close until the probate process finishes because technically, you are still not the legal owner of the property.
Selling before probate can be very complicated, we're not gonna lie. But if you want a glimpse of the whole process, check out the rest of this blog!
What is Probate?
According to the American Bar Association, probate is the legal process that checks a will's validity and determines a personal representative or executorwho will manage and distribute the deceased's estate or assets to the heirs.
Before the executor can distribute assets to the intended beneficiaries, all the remaining liabilities of the deceased must be paid.
When Does the Probate Begin?
The probate begins when a will has been found. The heirs should file a petition with the county court to request for the process to commence and to make the will a public record. The death certificate and will of the deceased should be brought to the court together with a petition form.
Each of the beneficiaries and heirs identified should receive a copy of the petition form. In some states, the petition is also published in the newspaper so the potential creditors of the deceased are informed.
The Probate Process
When the probate begins, the court appoints an executor if a personal representative is not identified in the will. This person can be one of the heirs or a neutral third party.
The executor then takes control of the assets and is legally entitled to identify all the debts of the deceased and disclose them to the probate court.
The debts must be paid before any distribution of assets. In case the deceased did not leave enough liquid assets to settle the debts, the executor should sell the estate's assets to cover liabilities.
Once all the debt is paid, the executor can start distributing the assets and the remaining funds according to the wishes of the deceased. If there is no will, the decedent's assets will be distributed based on the state's intestacy statutes.
Can You Sell a House Before Probate?
Selling a house before probate isn't exactly allowed because you still do not have legal ownership of the property.
Sure you can list the probate property in the local market, get a cash offer, do some marketing, etc., but the transaction won't be complete unless you were given the Grant of Probate.
There is, however, a way to avoid probate and sell property right after death. That is if a living trust exists. A living trust or revocable trust holds all assets so they won't be considered part of the estate that is frozen during probate.
You can also sell a house without going through formal probate or court supervision if the property passes on to you through joint tenancy with a right to survivorship (informal probate) or if you are a surviving spouse that inherited the house through a transfer-on-death deed.
This would also work if you are a surviving spouse or surviving owner living in a community property state. The same rule doesn't apply however if you are a child or other relative.
What Are the Problems With Selling Property Before Probate?
As we have mentioned earlier, you won't complete a real estate transaction if the property owner dies and the house is still going through probate. Should you decide to list in the local market, you may face some of these issues:
- You have to worry about selling and probate fees all at once. You also have to pay for court fees, property taxes, maintenance costs, utilities, and mortgage of the owned property at the same time.
- You have to look after the estate before and after probate. This means investing your time to clean and check on the probate property all throughout the selling and probate process.
- You have to deal with a family member that is against the house sale. Such a situation can lead to a rift between you and the other heir.
- There's no guarantee that potential buyers would take interest in the property or that the sale would generate some profit especially if the deceased person's debts are huge and there are not enough assets to cover them.
How to Sell a House Before Probate
If the deceased doesn't have any debt and all the heirs or family members agree to sell the estate, they can start listing in the local market or get a cash offer even before the legal process of probate finishes.
Sell to a Cash Buyer
Selling to a cash buyer is the best way to sell the house before probate. A cash sale has a flexible timeline since there is no mortgage lender involved.
You can get a cash offer for the estate and then communicate that you want to close the day after you get the Grant of Probate or court approval— the cash buyer would make this possible!
Many homeowners also prefer cash buyers because the sale process is less risky, there isn't much paperwork, there are no commission fees and closing costs, and there's no marketing involved.
General Process of Selling Real ESTATE to a Cash Buyer
To get a cash offer, all you have to do is visit the cash buyer's website and fill out a form or call them. They'll schedule a visit to your house to check its current state and assess its market value. After this home walkthrough, they'll give you a fair cash offer.
Once you have agreed to their offer, they'll send you a contract electronically. If you weren't still given the Grant of Probate, you cannot sign this contract yet. But the good news is, the cash buyer can wait.
You can sign the contract whenever you are ready and you can also close and move on the date that best suits your schedule.
Sell With a Real Estate Agent
Selling to the local housing market with a real estate agent is your other option if you want to sell house during probate or even before the process begins.
Note, however, that you must specify in your listing that the house is going through or will go through probate and that you can't close on the sale unless the process finishes.
Many buyers follow a strict timeline when purchasing a house in the local market. Mortgage lenders also follow a certain timeline and they do not approve loans for houses that are still in probate.
What you can only do at this point is find a buyer that is willing to wait for the probate to finish.
General Process of Selling Traditionally
To sell a house before probate in the local market, you have to get an appraisal and pre-home inspection, stage the house (while careful not to remove any items inside as they don't legally belong to you yet), list in the MLS, do some marketing, schedule open houses and showings, and negotiate.
Aside from working with a real estate agent, you would also need a probate attorney to guide you in this sale.
Related Questions
Can You Empty a House Before Probate?
No. You cannot empty a house before the probate process completes. Technically, you do not have legal ownership of the property yet so decluttering or moving things is against the rules of the court.
Any item inside the house is considered part of the will and should also be distributed to the identified heirs. Instead of removing them from the house, you must even secure the locks to ensure that they don't get stolen or damaged.
Make sure to consult a probate attorney before doing anything to the deceased person's estate.
How Long Does it Take to Sell a House Going Through Probate Court?
On average, it takes one to six months to sell a house during probate. Of course, this can take longer depending on the current market situation, disagreements among the multiple beneficiaries, and when the Grant of Probate will be released.
If there are no significant issues such as liens or outstanding debts and all the heirs are identified and they all agree to sale, the sales process would be much faster.
Can an Executor Start a Probate Sale?
Yes. An executor can start selling the house during probate since they are legally in charge of the assets of the deceased person.
But they have to get the appraised value or the market value of the property before petitioning the court to begin the home sale to protect him against any personal liability.
Do All Heirs Have to Agree to Sell a Property?
All heirs and other beneficiaries have to agree to sell a property if the probate process has been completed and the legal ownership has already been transferred to them.
But if the real property is still under probate, the executor isn't required to get the approval of all the heirs before the sale under probate laws.
Remember that the executor needs to settle all the debts of the deceased by selling the property before distributing the residual value to the heirs. In other words, selling probate property is still within their legal bounds.
Final Thoughts: Can You Sell a House Before Probate?
Selling a house before probate can be tricky. You are allowed to list, get an offer, or negotiate with a buyer but the sale won't be completed unless you were given the grant of probate. If you haven't communicated with the executor before making any actions, you'll face a list of legal consequences.
Nevertheless, if the estate's interested parties have consented to the sale and there are no debts to be paid, get a cash offer.
Here at House Buyer Network, we will buy your house on your own timeline. We can wait until the probate process finishes before we get to the closing phase!
If you are interested, fill out our form below or call us at (855) 835-2544 to start selling your house before probate.
