Probate is a court process involved in settling a deceased person’s liabilities, distributing remaining assets, and closing the estate. It can be a complex and lengthy process depending on the size of the estate, if the deceased had debt, if an estate administrator has been named, and if the heirs are cooperative.
Probate is required as long as the estate has probate assets regardless of whether the deceased had a will or not.
If a loved one recently passed on and you were left in charge of their property, you could be wondering if you can sell your house for cash without probate. If you owned the house jointly or were named as its beneficiary, you can sell it without probate.
Below we take a detailed look at circumstances under which a probate process is not required vs. when it is, and the steps for selling a deceased person’s house without probate.
If you jointly owned the house, you automatically became the sole owner of the house upon your partner’s passing. Ownership of the house is considered joint tenancy if both of you had a 50/50 stake in the property.
It could be that you bought the house jointly, with each of you paying for half the property’s value, so both of your names are in the title deed. Or the joint tenancy could be warranted by the marital law in your state. For instance, if you are in one of the community
If the decedent had put the house in a living trust and named you as the beneficiary, you do not need to go through a probate process to sell your house fast for cash. The deceased must have transferred the house’s deed to the trust before passing.
However, a probate process would be required if they had indicated in the will that the house would be transferred to the trust upon their death.
In most states, small estates do not need to go through probate. However, what qualifies as a small estate varies from state to state. For instance, only personal property is considered a small estate in New York.
The value of assets in the estate must be below $50,000 for it to be considered a small estate that does not require probate. On the other hand, in California, the estate is considered small if its value is $166,250 and below.
In Colorado, probate is required for all probate assets, irrespective of whether the estate is small or big. An estate is considered small if it is worth $70,000 or less. It must not contain real properties such as homes, buildings, or land. You can apply for a small estate probate process, which is quicker and cheaper.
Therefore, if you are in Colorado, you would require to go through the probate process to sell the house unless it is categorically a non-probate asset. However, if you were in California or Newyork, you could be able to sell the deceased person’s house without probate.
The caveat is that the total value of the estate, including the market value of the house, would have to be within the stipulated value for a small estate.
Some people use the transfer on death deed or beneficiary deed as a tool for estate planning. Whereby they provide details about the property and name their beneficiary/beneficiaries. The property’s title deed is transferred to the beneficiary upon their death.
Therefore, if the deceased person’s house has a transfer on death deed in place with you as the beneficiary, you can sell the house without having to go through a probate process.
Even if you are multiple beneficiaries, you can sell the house without probate as long as all of you agree on the sale. You could give one person the right of an attorney to oversee the sale of the house, or all of you can be involved in each step.
Most states also offer an informal probate process option if the decedent left a valid, uncontested will, with a qualified personal representative appointed.
The informal probate enables the heirs to settle the estate without requiring court supervision. In this case, you and the other heirs can sell the house without involving the court.
The IAEA was passed in 1987 to allow a personal representative to settle a deceased person’s will without a court process.
Therefore, if the deceased had appointed a personal representative in their will, you can sell the house without a probate process. You could also petition the court to appoint you as the personal representative to be able to sell the house.
If the house was on a mortgage, the lender has a lien on the property. Similarly, if the decedent had defaulted on their tax payments, the IRS could have a lien on the property.
The house would have to go through a probate process alongside the decedent’s other assets to be liquidated to pay any amounts owed before distributing the remaining proceeds to the heirs.
If you are unsure if the deceased has creditors, a probate process would be required.
During the probate process, the court notifies the creditors to contact the estate administrator for the owed amounts to be paid.
Suppose you anticipate having a problem selling the house as other people are occupying it, or there may be disputes with other heirs. In that case, it is advisable to go through a full probate process, regardless of the house’s value and estate.
If necessary, the court will oversee the eviction of people occupying the house or force anyone who is holding the house to turn it over. It will also settle disputes with other heirs and beneficiaries of the house to ensure a smooth sale process.
Unlike a joint tenancy where you have an equal stake in the house and exclusive survivorship in the house, in a tenancy in common, the partners have an unequal stake, and the house may be co-owned by more than two people.
Therefore, a probate process will be required to redistribute the stake among the surviving co-owners or to liquidate and settle the estate.
Since tenancy in common does not give a right of survivorship, the decedent’s stake belongs to his estate.
Therefore, even if you owned the house just the two of you, but you had unequal stakes in the house, a probate process would still be required to either give you sole ownership of the house or distribute the deceased stake to their heirs as stipulated in their will.
Dealing with a deceased person’s assets can be complicated. You may not be sure whether you need to go through a probate process to sell it or not.
While we have done our best to clarify circumstances under which a probate process may be required to sell a house, the right cause of action may vary from case to case. Therefore, consult with a probate attorney in your state if you are unsure.
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