Have A Property In Probate? Here’s What You Need To Know

Erika Bentley
Published on December 3, 2018

Have A Property In Probate? Here’s What You Need To Know

No matter if an individual has written a will, the estate of the decedent will undergo some type of probate procedure. When a valid will is left by the decedent, the property that’s included in the probate estate will pass on to the individuals that are named in that document. In circumstances when a will is not made by the decedent, then the state law decides who will inherit their property.

What is Probate?

During the process of probate, the gathering of the decedent’s assets occurs, their final debts are paid off, and their remaining property is distributed to their heirs or beneficiaries. It’s essential for all to understand that not all assets are considered probate assets — before being distributed, those must go through probate first. For example, under most circumstances, life insurance policies are not considered probate assets, so they can be used to pay beneficiaries outside of the probate procedure. Another example is real estate that that is owned by the decedent, as well as another individual as a joint tenant with rights of survivorship. This situation avoids probate so, if the home is owned in this way, it will pass directly to the other joint tenant.

Laws Regarding Interstate Succession

When a decedent passes away without a valid will, each state will differ regarding how they individually handle their laws surrounding intestate succession dictating what will happen to probate assets, to include real estate. These rules apply to estates where the decedents will was invalidated because it was not in compliance due to a lack of a witness’s signature or notarization, or the decedent never had a will. Under most circumstances, the purpose of intestate succession laws is to place priority on family members who have the ability to inherit estate assets. When there are no family members who can inherit, the property of the decedent will go to the state.

Real Estate Inheritances

After debts are paid, the decedent’s ownership rights in the family home will legally pass to their heirs during the probate process. Those who inherit the house have no obligation to keep it in their possession. For example, if a decedent’s children inherit the home, they can keep it as a form or joint ownership or sell it so they can split the proceeds. When a decedent passes away, their mortgage isn’t erased. Therefore, if there is debt on the home, their heirs must make those payments, or they must sell it to satisfy that debt.

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Have A Property In Probate? Here’s What You Need To Know
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