Real estate

Probate Real Estate: A Summary

Have you discovered that the property you want to purchase was originally owned by someone who has passed away? You were shocked when the seller gave you a copy of the tax roll that showed he was the owner of the property. 

One may invest in a person who will make a profit by selling the property. To ensure the accuracy of this identification, it is essential to find out whether the individual who claims to be the property owner can sell the property as quickly as feasible.

When does property fall under probate laws?

Without a right of survivorship, the title of the property is exclusively in the decedent’s name or the decedent’s name plus one or more other people’s names, and thus, probate administration is required to transfer the property.

When is a decedent’s property exempt from probate?

Without probate administration, title to the property will typically transfer in the following cases:

  • At the time of his death, the deceased was married and the property was jointly owned (tenancy by the entireties)
  • If the deceased owned property as a joint tenant with a right of survivorship with another individual or individuals
  • However, if the deceased had a life estate with a future interest in another person’s ownership
  • A trust owns the property

Is It Possible to Avoid Probate in Real Estate?

To avoid the complicated legal proceedings of probate, some individuals prepare their estate plans such that probate is unnecessary. To prevent probate real estate, there are options. 

Let’s discover what your choices are.

  • Revocable Living Trust – Living trusts are a simple method to avoid probate for real estate. Living trusts allow the creator to act as trustees until they die. In addition, they will choose a replacement trustee and trustees of the trust to administer and distribute the assets or estate after they pass. It is impossible to revise trust after it has been approved. The trust owns the property, which it may use or sell, but the trust’s beneficiary is not permitted to do so.
  • Joint Tenancy – Another way to avoid probate for real estate in joint tenancy is to use a trust. If you are the only owner of a property, you may include a joint tenant on the property’s deed. The transfer of ownership of the property will happen after you die, without any need for a probate procedure.
  • Transfer on Death Deed – You may avoid probate when transferring your real estate to beneficiaries since you can assign a Transfer on Death (TOD) deed. Your rights as a property owner will be retained throughout your lifetime, and you may even have the option to annul the transfer deed.
  • Life Estate Deed – You may enjoy your property now, and you can leave it to someone after your death with a life estate deed. Avoiding probate will help you avoid life estate deed legal issues, but doing so also forfeits the ability to sell, mortgage, or control the property without the consent of other beneficiaries. Traditional and improved life estate deeds are two distinct kinds of life estate deeds.

When may the personal representative sell the property?

Timely closings are essential to the success of a transaction in many instances. To sell the property, the personal representative must have the power to do it as quickly as feasible. This section examines the conditions in which the personal representative may proceed with the deed execution and sale.

Once designated by the court, the personal representative has the authority to sell the property if the will includes a power of sale. When a person who died without a will or who drafted a will without the power of sale is the beneficiary, the personal representative must get approval from the court before selling probate real estate. A sale must be approved or certified by the court before a transfer of title may be sold. Even if you overlook the remaining of the estate, the beneficiaries will not get the proceeds of the sale until all of the decedent’s debts have been satisfied (at least three months after the opening of the estate).


Identifying who has a vested interest in the property is easy to accomplish. You may begin by looking at the details on ownership from the local tax collector or property appraiser. The name of the alleged owner should be consistent with the name of the signatory

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