Yes, you can live in a house that is going through the probate process. The probate process is the legal way to transfer property from a now-deceased landlord to their family members. During the probate process, a will is read and the property and personal belongings are divided to the beneficiaries named, along with other assets, and typically, the surviving spouse will take the entire estate. If there is no valid will, the property is divided equally among the family members. When someone utilizes a revocable living trust rather than a will, they avoid probate.
Table of Contents
• What is a Probate Process?
• How long does Probate take?
• Living in the real estate property during the probate process
• When are you not allowed to live in a house in Probate?
• Maintaining a home during probate
• Renting Out a Probate Property
• What if the Home is Heavily Mortgaged?
• Consider Consulting a Probate Attorney
• Is there a need for Probate Court?
• Selling a house in probate
If you are living in a house that is going through probate, you need to make sure that you are following the estate’s rules. You may be required to provide proof of residency or pay rent to the estate. You should also keep track of any changes to the property, such as repairs or improvements.
What is a Probate Process?
Probate is a court-supervised process where the deceased’s property is distributed among their heirs after death. In order to begin the probate, someone involved in the estate needs to start a probate case by filing “letters of administration” with the local probate court. The person must be an heir or related to the decedent, such as a spouse, child, or parent. If no one steps forward to file for probate, then it is up to the state’s laws on what happens next—in some cases, nothing happens and the probate property simply passes on to other relatives (e.g., if there are no children).
How long does Probate take?
The probate process can take anywhere from a few months to a few years to have the property transferred, depending on the complexity of the real estate and whether there are any disagreements among the heirs. During the probate, the court will appoint an executor of the real property to manage the real estate assets. The executor is responsible for gathering the decedent’s assets, paying any debts, and distributing the property to the heirs.
Living in the real estate property during the probate process
As long as the survivor abides by the general rule of the estate—and how those rules are laid out in a will or according to state law if there is no will—the person can continue to live in the house during probate. The executor is not responsible for collecting rent, but it’s possible they could sell the house and use some of the money from that sale to pay back rent.
The major downside of living in an estate property is that any inheritance received would likely be reduced because of their ability to collect rent on the property. It may also involve additional court costs and require involvement with attorneys and/or accountants, which can add up fast (and these days everyone is looking for ways to cut down on expenses).
Probate Process From Start To Finish
When are you not allowed to live in a house in Probate?
There are some instances when you would not be allowed to live in a house going through probate. If the will states that the property is to be sold, then the heir cannot continue to live in it. This is also true if the executor decides to sell the property in order to pay off outstanding debts or distribute the assets.
If there is no will and the state law dictates that the property must be sold in order to pay off debts, then the family member cannot continue to live in it.
If you are living in a house during probate and it needs repairs, you should get permission from the executor before making any changes. You may also need to get permission before moving out of state with the property.
If there are any disputes, for whatever reason, among the heirs about who gets to live in the property, these issues should be settled before or during the probate process.
Maintaining a home during probate
If you are living in a house that is going through probate, there are some things you can do to help out the estate.
For starters, if the house needs repairs, you should let the executor know as soon as possible. That way they can make arrangements with a service provider and it won’t be your responsibility on their dime.
You can also help keep taxes down on the estate property by remembering to set aside the right amount of money for taxes at least once a year (if not more). You’ll need to figure out whether it’s better for you to pay those taxes or if they should be paid from outside funds—and then hand over any cash or documentation as needed.
Renting Out a Probate Property
If the executor decides to rent out the property instead of selling it, they will need to get court approval first. In fact, typically an estate representative would want to make sure it is lived in so that they can (1) receive rental income and (2) ensure the real property is being maintained. The rent amount should be comparable to the rental income of other properties is.
Is it a Previously Established Rental Property?
There is a good chance that the property has been rented out in the past, so you will need to talk with the executor about who was paying for the monthly payments before and if there is any documentation that may be found within your parent’s home. If so, then this information should be passed onto whoever takes over running the estate.
The lease signed by the now-deceased landlord and the tenants occupying the property remains in full force and effect. If the lease expires while the property is still in probate, the executor bears the responsibility of deciding whether continuing the rental status of the property remains consistent with the best interests of the estate.
What Happens To a House With a Mortgage When The Owner Dies?
If the home is heavily mortgaged, the executor may choose to sell it to pay the mortgage payments. If this is the case, they will need to get court and lender approval before doing so.
It’s important to remember that if a property is sold during probate, the money from the sale goes first to pay off any of the estate’s debts. After that, the remaining money is distributed among the heirs according to their shares in the estate. This can be a complicated process, especially if there are disputes among the heirs about who gets what. In these cases, it’s best to seek legal counsel to make sure everyone is treated fairly.
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Consider Consulting a Probate Attorney
If you’re feeling overwhelmed by all of these rules and regulations, it may be a good idea to consult with a probate attorney from your local law firm. They can help guide you through the process, give legal advice, answer any questions you may have, and be a personal representative for your interests in court if necessary.
Living in a house that is going through probate can be complicated, but if you follow the right steps, you’ll be able to avoid any costly mistakes. By understanding your rights as an heir and working closely with the executor, you can make sure the estate runs smoothly and everyone involved is treated fairly.
Is there a need for Probate Court?
When there is a will, a probate court isn’t necessary. Otherwise, the general rule is that if someone dies and owns real estate, any property they own is headed for some kind of probate process—will or no will, and because the court isn’t involved, no one must pay a fee to file for probate cases. If there is a will, the executor of the estate named in the will has the responsibility for carrying out the decedent’s wishes in a probate court.
When someone dies without a will, state laws determine who gets what. These laws are called “intestate succession” or “laws of intestacy.”
Court involvement is essential to establish legal heirship and make sure assets are distributed appropriately. The cost for opening an estate in these situations varies by state, but it usually entails filing with the courts and publishing notices in local newspapers. This can be costly if there are disputes among the family about who gets what assets.
Selling a house in probate
If the executor decides to sell the property in order to pay off debts or distribute the assets, they will need to get court approval first. Generally, the executor is not allowed to sell the property for less than it’s worth on the open market. Additionally, the executor will consider whether there is a specific beneficiary who will inherit the home.
There are a few things that can complicate a probate home sale, such as mortgages, liens, and easements. If any of these exist on the property, they must be dealt with before the sale can go through.
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