What Happens to a House in Probate: Understanding the Process

The death of a loved one can be an emotionally challenging time, compounded by dealing with legal matters.  If there is no estate plan in place, one question often arises: What happens to a house in probate? Let’s explore the potential options and common scenarios involving a house in probate, as well as the importance of protecting your interests during this process.

Potential Options

Dependent upon whether the decedent died without a will or estate plan (“intestate”) or with a will or estate plan (“testate”), all of the decedent’s assets, including house, may need to go through probate.  Probate is the formal legal process that recognizes that a decedent died testate or intestate, appoints a personal representative who will administer the estate, provides for the payment of taxes and liabilities, and distributes assets to the intended intestate or testate beneficiaries.

In an intestate estate, a house may pass to the decedent’s living heirs, such as children or other family members.  If the decedent was survived by a surviving spouse, the surviving spouse may have specific rights to the house in probate, depending upon the local state’s laws and whether the house is considered community property or separate property.  The probate court will oversee the distribution of assets so that the house will transfer to the rightful heirs according to the laws of intestate succession.

In a testate estate, the court will generally appoint the executor named in the will to oversee the distribution of property through probate court.

To initiate this process, someone (generally the named executor, surviving spouse or living heir) must file a petition with the probate court.  Once filed, the court will schedule a court hearing date which may be several weeks or even months after the filing.

Following the guidelines specified in the will, the judge oversees the transfer of property to the beneficiaries, who can choose to keep or sell the house. Typically, the spouse becomes the sole beneficiary of the house, but in other cases, the surviving children inherit and share the house equally.

The appointed estate representative or executor sells the property if the heirs do not want to receive it in kind (as real property) and would rather have the money or when distributing the real property in kind would likely cause a later dispute.

The assets of the estate, including the proceeds from the sale, will first be applied to settle any debts or liabilities of the deceased and the costs of administration, with the balance remaining to be distributed to the beneficiaries.

Protecting Your Interests

In the wake of a recent death, it’s natural to have questions and concerns about what will happen to the house in probate court, particularly if you are emotionally involved in the matter. For many families, probate involves not just legal issues, but fond memories and life moments or festering familial squabbles, especially when deciding the fate of a family home.

That’s why it’s important to consult with an experienced probate court attorney who can provide valuable guidance and support and help protect your interests. With the right legal counsel, families can have peace of mind and preserve those memories regardless of who may inherit the property.