Can You Sell a House Before Probate Is Granted?

Losing a loved one can be a challenging time. Add to this the process of selling their property and going through the lengthy probate process, you could soon find yourself overwhelmed and emotionally drained.

Probate is one of the biggest challenges when it comes to selling a house after a death. It pertains to distributing the assets of a deceased person and can be time-consuming and costly. Furthermore, probate might delay the sale of a property, making it difficult for the heirs to move forward with their lives. For this reason, many people often wonder if it is possible to sell a house before probate is granted.

Whether you are an executor of a will, a surviving joint tenant, or an heir, here’s everything you need to know about selling a house before probate is granted.

Probate And Its Relation to Selling a House

Probate is the legal process that takes place after a person’s death. It involves the validation of the deceased person’s will, the appointment of an executor (or administrator if there is no will), and the distribution of the deceased person’s assets to their beneficiaries.

Typically, probate adds significant complexity to the sale of the property. If the deceased person has mentioned an executor in the will and has left specific instructions for the disposition of their property, the executor can move forward with selling the property as outlined in the will. However, if there is no will or the existing will doesn’t specifically address the property sale, the probate court will appoint an executor to determine how the property should be distributed among the heirs. This can add several months, or even years, to the process of selling the house.

Additionally, probate also involves a lot of paperwork that must be completed before the property can be sold. For instance, the executor must obtain a court order approving the sale, which, in itself, is a complex and time-consuming process. However, the only solution is to be patient since the house is considered an asset of the estate during the probate and can’t be sold or transferred without the court’s permission.

Types Of Ownership and Their Impact On Probate

Before answering the question if you can sell a house before probate is granted, let’s look at how the different types of ownership affect the probate process and the distribution of a deceased person’s property.

  • Joint Tenancy – Joint tenancy is a type of homeownership where two or more people own and have equal rights to the property. If one of the joint tenants dies, the property is automatically transferred to the surviving joint tenant(s) and hence requires no probate.
  • Tenancy in Common – Tenancy in common is much like joint tenancy, except that each tenant owns a specific percentage of the property. So, if a tenant in common dies, their share of the property must go through probate and can only be distributed according to the terms of their will or state laws.
  • Community Property – Community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) have laws that consider all property acquired during the marriage as community property. Meaning, the property is owned by both spouses jointly. However, when a spouse dies, the community property is distributed according to the state’s laws rather than the will of the deceased.

Can You Sell a House Before Probate Is Granted?

It is actually possible to sell a house before probate is granted, but the process can be complex and may depend on several factors, including the type of ownership, the terms of the will, and state laws.

Joint tenancy can help you avoid the probate process altogether, as the property is automatically transferred to the surviving joint tenant(s). Hence, if the property is held in joint tenancy, and one of the joint tenants dies, the surviving tenant can sell the property without probate.

In addition, if the deceased person had a power of attorney in place, the person designated as the attorney-in-fact may be able to sell the property without the need for probate. However, a power of attorney must be in effect before death, and the authority to sell the property must be specified in the document.

Lastly, some states allow for a simplified probate process for small estates, referred to as the small estate affidavit. This process enables the heirs to sell the property without a formal probate proceeding.

Potential Challenges And Complications Of Selling A House Begore Probate Is Granted?

Selling a house is challenging and selling a home through probate is even more complex.

To begin with, if the deceased person had a mortgage on the property, the executor or attorney-in-fact will have to work with the lender to pay off the outstanding balance before the sale can be completed. Similarly, any liens on the property, such as unpaid taxes, should be cleared before the sale. In addition, if there are multiple heirs or beneficiaries to the property, they will have to agree on the sale, as any disagreement will delay or even halt the sale process.

In case you plan to sell the house before probate is granted, there are legal complexities and requirements to navigate, including obtaining court approval for the sale. Therefore, it is ideal to work with a legal professional to ensure you take the proper steps to navigate any potential challenges and complications that might arise when selling a house before probate is granted.

Take One Step at a Time

Probate can be a significant obstacle to selling a house after a death. While there are a few exceptions, it is typically impossible to sell a property before probate is granted. But the good news is that, though you need the Grant of Probate to sell the house, there is no one stopping you from listing the property for sale before the probate is complete. So, feel free to list and market the home, so you can close on the best deal as soon as the probate is granted.

Contact Jackie Ruden Realty Team

Give us a call today at (435) 272-7710 to set up a time to discuss your current and future real estate goals in regards to buying a home or buying a property in trust. We look forward to working with you to make your goals a reality.

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