About 65 percent of Americans are homeowners, according to the National Multi Housing Council. This figure jumps to 78 percent if you narrow the field down to people 45 or older. Depending on how they hold title, there's a reasonable chance that their homes will end up in probate when they die. The probate process transfers legal ownership from the decedent to his beneficiaries. In a best-case scenario, his estate is ample enough to cover his debts and taxes so the house can pass to his named beneficiary intact. Otherwise, it might be necessary to sell the real estate to make ends meet and close the estate.
Check the decedent's will. Unless it names you as executor, you don't have the power to sell real estate as part of the probate process. If it does name you, you must next ascertain whether it also requires that the property be sold, or if it gives you the right to do so without probate court intervention. It may say this specifically, or it might allow for an "independent administration." In most states, this also means that you can act without court supervision.
Petition the court for approval to sell the real estate if the decedent's will doesn't authorize you to act on your own. The exact procedure can vary from state to state, but it typically involves filing a petition or motion with the probate court, seeking a judge's permission. You must send a copy of the paperwork to everyone who has an interest in the estate – this usually means beneficiaries, heirs, and possibly creditors, but check your local law. The court will hold a hearing and the judge will either approve or deny your request.
Read the court's order of approval for any requirements you must meet that are unique to your state. If you did not have to file a petition, check with a local attorney who can advise you of these specific probate rules. For example, you may have to list the property with a real estate broker because the law doesn't permit you to handle the sale yourself, even if you already have a buyer lined up.
Sell the property. Your state may have specific rules for this as well, so refer to the order allowing the sale, or discuss requirements with a local attorney. For example, in California, you typically can’t sell probate real estate for less than 90 percent of its appraised value. You must also post a notice in the newspaper before the sale closes. Many states have rules preventing executors from purchasing estate property personally – at least without court approval. You usually can't sell it to someone who has any relation to you either, such as a business associate or a family member. You may need the court to authorize the actual sale.
Properties held by joint tenants with rights of survivorship do not require probate. They pass to the surviving owner by operation of law, so no court procedure is required to change title. After inheriting the property, the surviving owner can do anything he likes with it, and the executor of the state has no authorization to sell it.
In some states, after you send notice to interested persons that you're petitioning the court for the right to sell the decedent's real estate, they have a window of time within which to object to the sale. If this should occur, you might find yourself involved in a long, drawn-out legal battle. The court can still approve the sale, but the objecting person has the right to argue his case at the hearing.
- California Association of Realtors: Probate Sales of Real Property
- Greenville County: Selling Real Estate While in Probate (PDF)
- Cary A. Lind: Real Estate Interests in Probate and Non-Probate
- Legal Information Institute: Joint Tenancy
- National Multi Housing Counsel: Quick Facts – Resident Demographics
- LAWriter Ohio Rules and Laws: 2109.44 Prohibited Transactions; Purchase of Property
- New York State Unified Court System. "Last Will and Testament." Accessed April 8, 2020.
- Superior Court of California, County of Santa Clara. "About Probate - How to Probate a Decedent's Estate." Accessed April 8, 2020.
- Middlesex County New Jersey. "Surrogate." Accessed April 8, 2020.
- Hawaii State Judiciary. "Circuit Court Filing Fees and Costs," Page 2. Accessed April 8, 2020.
- Middlesex County New Jersey. "FAQ Surrogate - How Can I Get a Copy of a Will?" Accessed April 8, 2020.
- Huber Law Group. "Obtaining Records." Accessed April 8, 2020.
- In some states, after you send notice to interested persons that you're petitioning the court for the right to sell the decedent's real estate, they have a window of time within which to object to the sale. If this should occur, you might find yourself involved in a long, drawn-out legal battle. The court can still approve the sale, but the objecting person has the right to argue his case at the hearing.
Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.