Houses are one of the more valuable parts of most estates, not just financially, but also from a sentimental standpoint. This leaves many to wonder how their house will be handled through the probate process. The answer to that should, of course, be that it will be handled however the deceased would like it to be handled. That, though, is not always the case. It’s important that the estate plan be properly set up and the probate process be well-managed to ensure that the house is properly handled according to the desires of the deceased. Working with a quality probate lawyer can help make that happen.
Houses During Probate
What happens to a house in probate is generally a product of how carefully planning was done before the probate process began. There are many things that someone can do ahead of time to ensure that the house is handled the way they wish. If proper steps aren’t taken, then the court will be left to decide how the house will be handled. Some of the things that can happen for a house related to probate are:
- Conveyed to a spouse, children, or next of kin – If the deceased did not leave a will, that creates what is known as an intestate probate situation. This leaves the judge to determine who to transfer the house to based on California’s intestate succession laws. It will likely be transferred to the deceased’s spouse, children, or next of kin.
- The heirs named in the will have the house transferred to them – If there is a will, then the house will, in all likelihood, be transferred according to that will, with the exception of there being a dispute.
- The house is sold – In some cases, the executor will need to sell the property. This is a process that follows strict rules, and the sale cannot happen until the judge approves the agreement.
- The house avoids probate – It is also possible for a house to avoid probate altogether. This is typically done by placing the house in a living trust, whose assets are exempt from the probate process.
FAQs
Q: Can You Remove the Contents of a House Before Probate?
A: Generally, the contents of a house cannot be removed before probate. This is because many of the assets in the house may be included in the probate process. To prevent someone from taking something like jewelry, family heirlooms, memorabilia, or anything else of interest that was designated for someone else, the contents of the house will be expected to be left alone until after the probate process is worked through.
Q: What Does the Probate Process Consist Of?
A: The probate process is a lengthy, complex one that is meant to ensure that assets are distributed according to the wishes of the deceased after all debts, liabilities, and taxes are first paid. The sale of a house could occur during this process to pay those debts. The probate process involves:
- Establishing that probate is necessary because the value of the estate is greater than $166,250
- A newspaper public notice of the proceedings, along with heirs and beneficiaries being notified
- Control of the estate being given to the executor of the will or the assigned administrator
- Paying any outstanding debts or liabilities, which could include the judge-approved sale of some assets
- Any applicable taxes being paid
- The remaining assets being distributed according to the will
- An accounting of the estate to a judge, who will then close out the estate
Q: Can a House in Probate Be Sold?
A: A house can be sold while in probate. However, there are some limitations to the process. Typically, the sale would be a process that is done by the executor of the will but not without oversight from the court. For the sale to be approved, it must meet a minimum price. In this case, that minimum is 90% of the value that it was last appraised for, and that appraisal must have occurred within one year of the sale. Once a buyer and executor have agreed to a sale, the process will then shift to a hearing before the judge involved with the probate. Before the judge can approve the offer, they will first see if anyone else in the courtroom wishes to make a bid. This is because a probate sale should seek to receive the highest price for any asset in the estate. The initial bid, though, must be at least 5% plus $500 higher than the original buyer’s offer. If someone bids that much, there is an auction of sorts, with the judge setting the minimum. Once a final buyer is settled, there can be no contingencies once the judge approves the sale.
Q: How Can You Avoid a House Going Through Probate?
A: If you don’t want your house going through probate when you die, there is a solid option available to you. You could put the home in a living trust. The assets in a living trust don’t need to be listed in the probate process. This means that you can place the house in a living trust, manage that trust while you are alive, and be assured that the house will be dealt with according to your wishes, which are described in the trust, when you die.
We Can Help Manage Your House’s Journey Through the Probate Process
For many, a house is one of the more important parts of an estate. It’s often one of the highest-value items in an estate. For some, it could be the same house that the family was raised in, with tremendous sentimental value associated with it. It’s important that what happens with the house after someone dies is exactly what the deceased owner wanted to see done with it. The same is true of the rest of the estate as well. If you’re looking to be sure that your estate and house are properly handled through the probate process, contact us at Quinn & Dworakowski, LLP today.
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