Often, when a homeowner dies, their house is the largest asset in their estate. Family members may need or want to liquidate the property as soon as possible. A house frequently represents more than its financial value, of course; it may hold treasured memories of the deceased and of time spent with family there over the years. Family members may not want to sell the house because it makes them feel bad, even if it is the best thing to do financially. Accordingly, it is often difficult to decide what to do with a house, and when, after a death. One question we often hear in our office is, “Can I sell a house before probate?”.
The short answer is, “Usually not. ” But there are some important qualifiers to that answer, so let’s discuss what probate is, when a house has to go through probate, and what is involved in selling a house in probate.
Many people who are entitled to someone else’s property ask if they can sell it before the probate process starts. This is a common question, especially when heirs need money quickly or want to skip the long probate process. I’ve done a lot of research on this subject and will tell you what you need to know about selling a house before, during, and after probate.
The Quick Answer: Can You Sell a House Before Probate?
No, you cannot sell a house before probate begins. The simple reason is that you don’t legally own the property yet. Until the probate process has started and the court has appointed a personal representative (also called an executor), no one has the legal authority to sell the deceased person’s property
“The probate process is meant to stop fraud after someone dies,” says the Ledbetter Cowan Law Group. You can’t sell the house until it has gone through probate and the personal representative has been given permission to do so. Until then, you don’t own the house… “.
When CAN You Sell an Inherited House?
While you can’t sell before probate begins, there are three main timeframes to consider:
- Before probate – Not possible (with a few exceptions I’ll cover later)
- During probate – Possible with court permission in most cases
- After probate – Completely possible without court supervision
Let’s dig deeper into each scenario
Selling a House During Probate
After probate has started and a personal representative has been chosen, the property can be sold. However, the authority to sell depends on two main sources:
- The decedent’s will – If the will specifically grants the executor the power to sell real estate, the process may be more straightforward.
- Court order – If the will doesn’t mention selling property or there is no will (intestate), the personal representative must petition the court for permission to sell.
Many states have laws, like the Independent Administration of Estates Act, that allow executors with explicit powers in the will to act with minimal court supervision. This can streamline the sale process considerably.
The Process for Selling During Probate
If you’re the personal representative and have authority to sell the property during probate, here’s what the process typically looks like:
- Get an appraisal – Obtain a certified appraisal of the property’s value
- Petition the court – File a petition asking for permission to sell (if required)
- List the property – Upon court approval, list the house with a realtor who understands probate sales
- Accept an offer – When you receive an offer, it’s provisional until confirmed by the court
- Court hearing – A hearing is scheduled, and notice of the proposed sale is given to all beneficiaries
- Possible overbidding – In some states, others can submit higher offers during the court hearing
- Court approval – The court approves the highest/best offer and issues an “Order Confirming Sale”
- Close the sale – Finalize the transaction and transfer title to the new owner
Managing Sale Proceeds During Probate
An important consideration is what happens to the money after selling a house during probate. The funds must be:
- Deposited into a special account opened for the estate
- Used to pay estate obligations in this order:
- Costs of administering the estate (attorney fees, court costs)
- Funeral and burial expenses
- Federal and state tax debts
- Other obligations (medical bills, creditor claims)
- Only after all debts are paid can remaining funds be distributed to beneficiaries
Exceptions: When a House Can Avoid Probate Entirely
If any of the following are true, the house will not go through probate and can be transferred or sold without going through the court process:
- Living trust – If the property was placed in a living trust before death
- Joint ownership – When the property is jointly owned with rights of survivorship
- Transfer on death deed – If the owner filed a transfer on death deed (available in some states)
In these cases, the property passes directly to the surviving owner or designated beneficiary, allowing for a quicker sale process.
Selling a House After Probate
Once probate has concluded, selling becomes much simpler. At this point:
- The house has been legally transferred to the new owner(s)
- The new owner(s) can sell the property as they wish
- No court supervision is required
- Standard real estate procedures apply
As Ledbetter Law puts it: “Once probate has been wrapped up, the house has been given to a person or a set of people who then own the property legally. Therefore, they are able to sell it if so desired without court supervision.”
Practical Considerations When Selling an Inherited House
If you’re thinking about selling an inherited property, here are some practical tips to keep in mind:
- Hire professionals who understand probate – Work with realtors and attorneys familiar with probate sales
- Consider timing carefully – Probate can take months or even years; plan accordingly
- Be transparent with buyers – Disclose that it’s a probate sale, as this may affect timelines
- Budget for expenses – Remember to account for realtor commissions, repairs, insurance, and other costs
- Communicate with all heirs – Keep everyone informed to avoid disputes
- Understand tax implications – Selling inherited property has unique tax considerations
Common Challenges When Selling Before or During Probate
When dealing with an inherited house, you might face several challenges:
- Multiple heirs with different opinions – Some may want to sell while others want to keep the property
- Property condition issues – Inherited homes often need repairs or updates before selling
- Outstanding mortgages or liens – These must be addressed before or during the sale
- Emotional attachments – Family members may struggle with selling a long-time family home
- Court delays – The probate court process can be unpredictable and slow
What If You Need Money Before Probate Completes?
If you’re waiting for probate but need funds urgently, consider these alternatives:
- Estate cash advance – Some companies provide advances against expected inheritances
- Probate loans – Specialized loans for heirs and executors
- Personal loans – Using your own credit to bridge the gap
- Negotiate with creditors – Explain the situation and request patience until probate completes
The Bottom Line: Planning Ahead Makes Everything Easier
While it’s generally not possible to sell a house before probate begins, understanding your options during and after probate can help you make informed decisions. The best approach is planning ahead – if you’re creating an estate plan, consider putting your home in a living trust or establishing joint ownership to avoid probate entirely.
If you’re already dealing with an inherited property, consult with a probate attorney to understand the specific laws in your state and determine the fastest, most efficient path forward.
Remember, every state has different probate laws, and every family situation is unique. What works for one estate might not work for another, so professional guidance is invaluable when navigating these complex waters.
Have you dealt with selling a house during probate? What challenges did you face? I’d love to hear your experiences in the comments below!
FAQs About Selling a House Before Probate
Q: How long does probate typically take?
A: Probate can take anywhere from a few months to over a year, depending on the complexity of the estate and your state’s laws.
Q: Can I start renovating or preparing the house for sale before probate?
A: It’s generally best to wait until you have legal authority as the personal representative, though minor maintenance to prevent damage may be reasonable.
Q: What happens if I sell a house without going through proper probate procedures?
A: This could be considered fraud and may result in legal consequences, including liability to heirs and potential buyers.
Q: Are there ways to speed up the probate process?
A: Some states offer simplified probate for smaller estates. Working with an experienced probate attorney can also help navigate the process efficiently.
Q: Do all states have the same probate laws?
A: No, probate laws vary significantly by state, so it’s important to understand the specific requirements in your jurisdiction.
How Can the Executor Sell a House That is in Probate?
If a house has to go through probate, the person in charge of the estate has to follow the rules set by the probate court before they can sell it. The personal representative is the person formally appointed by the court to manage the estate. The personal representative is sometimes referred to as the executor or administrator of the estate.
Exactly what the personal representative needs to do depends on the type of probate process the estate must go through. Smaller and more straightforward estates may be able to go through an unsupervised probate process; larger and more complex cases require supervised probate. With supervised probate, the court is more heavily involved in the process of the sale.
Depending on the county where probate is filed, the probate court may need to approve any sale of the property before it can go through. This means that the personal representative of the estate can hire a real estate lawyer and put the house on the market. This is not necessarily the case, approval for the sale of a house varies depending on the county in which the probate is filed. In a probate sale of real estate, the property is usually sold “as-is;” heirs or beneficiaries of the estate are often unable to do the repairs or updates that might typically be done before selling a house.
In some cases, it may be necessary to sell the house during probate in order to satisfy the debts of the estate. However, selling a house during probate often lengthens the probate process. This paragraph is a little confusing to me with the back and forth If you are unsure whether or not to try to sell a house during probate, you should discuss the pros and cons with an experienced probate attorney.
When Does a House Have to Go Through Probate?
Probate is the legal process of administering a deceased person’s estate, paying estate debts, and distributing assets to heirs and beneficiaries. But not all property has to go through probate. Usually, assets that are only owned in the name of the deceased go through probate.
A house does not have to go through probate if it is jointly owned with rights of survivorship; in that case, the surviving owner automatically takes ownership of the house. If a house is held in a trust, the trustee can sell or transfer the house according to the terms of the trust without any probate court involvement. (Probate avoidance is one of the primary reasons many people create trusts.) A “ladybird deed” is another estate planning tool that can prevent a house from needing to go through probate. The use of any of the above means that the property can be sold at any time, even if other estate assets do need to go through probate.
However, if the deed to the property is in the sole name of the deceased, it must go through probate, whether or not the decedent had a will. In that case, the house cannot be sold before probate, and there are important steps that must be taken during the probate process in order to sell the house.