What Happens to a House in Probate?
Probate applies to all assets someone leaves behind after passing. Not every house has to go into probate, but the legal procedure is sometimes required to establish the ownership of a property after someone has died.
When selling a house due to probate, it’s essential to find a probate attorney with knowledge of state law. Because the rules can vary significantly per state, the process of selling a house can get complicated and distressing at an already difficult time.
Keep reading to learn what happens to a house in probate and how to sell it.
1. Filing of the Death Certificate
At the beginning of the probate process, the law in most states says that whoever has the deceased’s will has to file it as soon as they can within a probate court. This is when the petition to start probate happens, and you might need to file the death certificate.
A probate judge then has to check that the will is valid, which sometimes requires a court hearing.
2. Analysis of the Will
It is important that a close analysis of the will takes place. If there is a newer will then this might invalidate the previous. Similarly, if the will has not been properly drafted then there is a chance it might not be legally binding.
Initial hearings give people an opportunity to object to the will for a number of reasons. Courts need witnesses and there might be a reliance on witnesses. A will also needs affidavits, which rely on witnesses to have signed a document to say the will has been signed and witnessed. This is what the court uses as a part of its analysis.
3. Finding the Executor
Next, the judge appoints the will’s executor. Depending on where you are based, this might be called the “administrator of the will”. The executor is responsible for overseeing the whole process and what happens to the deceased’s estate.
In the will, a descendent may have left their preference for who the executor of the will should be. This might be a spouse or one of their children.
However, the named person does not have to accept the responsibility. Nobody can be forced to be an executor. If they don’t want to serve in this way, the court can appoint an alternative executor.
Once appointed, the executor then receives the legal documentation that lets them take on transactions for the deceased. These are often called “letters of authority”.
4. Processing Other Assets of the Descendent
A house probably isn’t the only asset that has to go through the probate process. The executor takes on all of the decedent’s property and must establish how to protect the assets throughout the process to ensure they end up with the rightful parties.
Some assets might not be immediately clear, so this step can take time. Plus, executors may have to search for other assets known but not named in the will. Things like insurance policies can help work out if there are assets not declared in the will or to family members.
Real estate becomes the executor’s responsibility during the probate process. Therefore, they have to ensure all of the outgoing costs, such as mortgage payments and taxes, are paid.
Other assets that aren’t real estate may fall under the ownership of the executor during probate. If someone has valuable items, the executor can keep these in safe places until probate is finalized and the assets are distributed.
5. Notifying Creditors
Next, the creditors who are owed money by the deceased need to be notified. They often only have a limited time they can claim money against the estate. But the time period and criterion can vary depending on which state you are in.
Many states make it a legal requirement for the executor to put out a notice of death, usually in a local newspaper. This is a way to notify creditors that cannot otherwise be traced.
When claims are received, executors have to work out if a claim is valid. This can sometimes get messy. Probate judges can step in to decide whether there is a strong legal case for the money to be paid or if it is not required. It is not unheard of for fake claims to be made from unknown creditors.
If there are valid claims from creditors, the funds need to be paid by the executor. Estate funds can be used to pay off bills. This is simpler if there are cash assets.
If all the money is tied up in property, settling the debts can be more difficult. This is one of many reasons why houses in probate end up getting sold, as it divides the money among numerous parties who have a claim to some of the property’s value.
6. Finalization and Estate Distribution
When the required steps have taken place and creditors paid, the executor may ask the court for permission to distribute the assets. Depending on the complexity of the will, this part of the process can be the most difficult.
Most courts request a complete accounting of all the financial transactions throughout the probate process as a legal proceeding. On top of this, if a house needs to be distributed, it will need to be sold first before the funds can be split.
If you are entitled to 40% of a property’s value under a will, a cash settlement may be required. From here, you will need to sell your house. Some states don’t need the accounting requirement, but this usually means the beneficiaries have to sign a waiver.
Remember, the probate process can vary significantly from one state to another. Therefore, it’s important to get professional help to make an otherwise difficult process as pain-free as possible. Unfortunately, probate usually takes some time. This is especially true when real estate is involved, as it may still have a mortgage (with closing fees), or it may need to be sold to divide its value.
It’s important that everything is carried out correctly so that assets are fairly distributed and no further legal action is required. The executor and probate courts both play key roles in getting the process carried out fairly and effectively.
If you have a property going through probate and need to sell a house quickly in Philadelphia, Brotherly Love Real Estate buys houses fast for cash. We can help make the selling process quick and easy during a difficult time.