Is Property Divided in Probate?

Probate involves distribution of assets, including property, as part of the process. The process begins after the death of someone who owned the assets. Dividing property may occur according to the wishes of the deceased person in a will or under state laws if a will is not provided. Sometimes it takes court action on the part of the heirs to divide property, which lengthens probate.

Assets in the deceased person’s estate are first gathered, evaluated and used to pay debts, taxes and expenses before they are distributed to the proper beneficiaries. The assets include property, financial holdings such as bank or investment accounts, household belongings, collections and other materials once owned by the deceased. The probate court, located in the county where the deceased resided, monitors the functions of an administrator, who handles the assets as they are being evaluated and transferred.

The estate administrator, known as the executor or personal representative, may be chosen by the decedent in a will or appointed by the court if there is no will. A spouse, oldest child or other family member is usually chosen to administer the estate in probate. The executor handles inventory and appraisal of all assets, arranges funeral expenses, and pays any bills owed to creditors and taxes. The executor is also entitled to fees for administering the estate. After these procedures, transfer of estate property takes place. Some people avoid the probate process completely by setting up trusts, which legally determine distribution of assets after death.

State laws vary. In some states, if there is no will, the property and assets go to the spouse or are divided equally among the children if there is no surviving spouse. The necessity for a will may depend on how large an estate you have. People may own multiple properties and investments, which need to be divided properly, according to their will. Other people may own a home and some financial holdings and believe the assets can be divided equally among children with no problems after conferring with a lawyer. Unfortunately, in some cases, siblings may argue over assets, including property, after a parent’s death.

Problems may arise over property, such as the family home, if a will or trust does not stipulate who should receive the asset. In some cases, even a will can be contested by one or more people. That's why it is best to select an executor to handle your estate beforehand. If none has been chosen, the court-appointed executor has the responsibility and obligation to maintain all assets, including the property, until issues are resolved. If no heir is selected to inherit the property, the children must do their best to reach an agreement. The final decision needs court approval. If the heirs cannot reach a decision, it may result in partition, in which one party files suit against another party or parties to sell the home at auction to divide the proceeds. This can divide the family further.