WHAT IS PROBATE REAL ESTATE

When a person dies, leaving behind property, that property gets distributed according to the state probate laws. Each state maintains different laws, so this process varies from state to state. However, the generalities do exist in any probate case involving real property.

 • Estates:  When a person dies, the property they leave behind is generally referred to as their estate. Under the probate laws in each state, probate property gets distributed either in accordance with a last will and testament or bylaws of intestate succession. Whenever real estate is part of an estate, these same procedures and rules apply, though, there are specific aspects of probate law that only applied to real property.

 •Procedures:   Though the probate laws differ from state to state, typically estates will be admitted before the probate court by an interested party. This is usually done by turning in the person's will or notifying the court upon the death of the individual. The court will appoint or approve an executor to oversee the distribution of assets. The executor is responsible for determining the estate property and ensuring it is disposed of in accordance with the will or the laws of intestate succession.

 •Probate Court:  In general, probate courts do not supervise or otherwise manage the distribution of assets during the probate process. It is up to the executor (sometimes called the personal representative) to account for and distribute all real and personal property in the state. Unless a beneficiary or potential beneficiary sues the executor or otherwise files a petition in court challenging the estate administration, the probate court plays a small role in how any property gets distributed.

•Selling of Real Estate In Probate:  Occasionally, real estate must be sold during the probate process. If there are heirs that do not get along and no one wants the house, they don't want to take title to it and then have to sell it, or the estate has debts to pay and the house has to be sold to pay off creditors or there are several heirs and it makes more sense to sell the house during probate and distribute the cash, then the house must be sold through the probate process.  Selling real estate through the probate process may involve various procedures to obtain court approval of the sale or to sell the real estate without court approval if the personal representative or administrator of the estate is given full authority to administer the estate under the Independent Administration of Estates Act. 

•Independent Administration of Estates Act:  Independent Administration of Estates Act allows the executor or administrator to sell real estate (and certain other property) without court supervision, if such authority is requested in the Petition which starts the probate.  A Notice of the proposed action must be given to all interested parties with its terms 15 days before the sale. If all of these people who must be given notice file a consent, the sale can take place as soon as they send in their consents. If none of these people who must be given notice do anything, the sale can take place 15 days later. IF any of these people who must be given notice mails an objection to the court or to the Executor or the Administrator, then the sale would need to proceed through with Court supervision.