August 21, 2023
Needham, MA--When you inherit property on the death of a loved one, your first instinct may be to get that monkey off your back and fast. If you already own property, you are well aware of the maintenance, mortgage payments, taxes and insurance that it takes to keep the property afloat and may be looking to sell the property as quickly as possible.
But before you put that property on the market, you will probably have to slog through the probate process – and that can take time.
Taking an estate through probate can typically take nine to 12 months, but it is not unusual for an estate to languish in probate court for up to two years.
The first step is the authentication of the will and approval of the executor named in the will to begin the probate process. The process becomes much more complex if there is no will, because then the court has to determine who will inherit the property. Multiple heirs can also complicate the process as to proceed quickly through the process requires agreement on the part of all parties.
An experienced probate attorney is a godsend in these situations, as they can guide the heirs through the process with the greatest efficiency.
During the probate period, the executor must handle the management of the property, from paying the mortgage and taxes, to maintaining the property. In some cases, if the assets are needed to settle the deceased’s debts, the property may have to be sold during probate to pay off those debts.
The property does not need to go through probate if the original owner:
- Created a transfer-on-death deed naming you as the inheritor or
- Placed the house in a trust with you as the beneficiary
In both cases, the title to the property is transferred to you immediately.
Documents you will need to put the house on the market
When the estate is being probated, the court will want to see the death certificate, the last will and testament, any existing trust documents, beneficiary designations, contact information for the heirs and the deed to the property.
Once probate is completed, the new owner or owners will have to go to the county recorder’s office to request a new deed with their names properly recorded. In order to accomplish this, the recorder will need to see an official copy of the Death Certificate and the probate court documents approving the transfer to the heirs. Once the deed is properly filed, the heirs can begin the process of selling the property.
In the case of an existing TOD or trust, you will be able to sell the property immediately under the auspices of one or the other of these legal documents.
The preceding is not intended to serve as legal advice, but rather, a general discussion. Keep in mind that probate law can vary from state to state. If you have a state-specific question, let us know. If we don’t practice in that state, we can refer you to a qualified attorney licensed there.