When a person dies, her estate may go through a court process known as probate. Probate includes the property the decedent owned at the time of her death. Depending on the type of property and if any was a piece of real property, you may question as to whether or not the decedent's property can be rented during the time the probate occurs.
Probate is a court procedure that is responsible for the transfer and distribution of a decedent’s estate. The transfer can occur through a will or through intestate succession, which defines the heirs when none are designated in a will. As probate can be a long process, an executor is normally named and confirmed by the court to be responsible for the property during the process. This includes the personal property, such as artwork, jewelry, stocks or bonds in addition to real property.
Real property consists of land and the structures on the land. It includes the personal residence of the decedent before she passed away and any vacation homes she may have in other states or countries. It also includes income property, such as an apartment unit she rented out to tenants or rental homes she may have owned. Commercial property, such as office buildings, farms and businesses, would also be included as real property. The care of these assets is the responsibility of the executor of the will.
The duties of an executor of the will as to real property vary. Not only must she protect the assets, she must also maintain them in good condition. This includes collection of rents, responsibility for repairs and daily maintenance, such as the property exterior lawn care or the cleaning of a pool or fountain. She is also responsible for long-term maintenance, such as tree trimming, roof repair, electrical wiring or structural damage. The goal is transferring the asset in similar or better condition than it came into probate.
An executor does have the power to rent a property in probate. It is more desirable to have a tenant in the property during the probate process than leave the property idle. The rents from a tenant can pay the property taxes and monthly mortgage payment. Rents can also cover the maintenance and repairs of the property. As this does involve a legal question, you should consult an attorney in your area for specific information about your case.
- One CLE: California Probate Code Section 2591
- Washington Real Estate Law Blog: What Is the Estate's Personal Representative (Executor) Allowed to Do With a Decedent's Real Property During Probate During Probate? (Answer: a Lot)
- Internal Revenue Service (IRS). "Frequently Asked Questions on Gift Taxes." Accessed May 25, 2020.
Angelique de la Morreaux began writing articles for various websites in 2010. Her focus is in the legal, small business, beauty, holiday, culture, food, drinks and automotive categories. Morreaux holds a Bachelor of Arts in social sciences from San Diego State University.