Can You Sell a House Before Probate In San Francisco Bay Area?
Experiencing the death of a loved one can be devastating.
Next comes the lengthy, challenging process of managing the belongings of the deceased, also referred to as probate.
Occasionally, the inherited property serves as a continual reminder of the loss, so it’s natural to desire to sell the property as soon as possible. You may even ponder if there’s a way to avoid probate entirely.
So, can you sell a house before probate?
To answer that, we put together a guide to demystify the probate process and help you in the process of selling inherited property.
What is the Probate Process in San Francisco Bay Area?
Probate is a legal process that involves the review, administration, and distribution of a person’s assets after death.
Probate seeks to accomplish the following:
- Establish a will’s validity.
- Provide a complete inventory and determine the appraised value of a decedent’s assets.
- Locate and contact all the other beneficiaries.
- Determine whether the deceased person has enough assets to cover liabilities.
- Ensure that all of the deceased person’s debts and taxes are paid off.
- Ensure that the assets of a deceased person go to its intended beneficiaries or creditors even if a will is absent.
On average, the whole process takes six to nine months and probate fees can cost between 3% to 7% of the estate’s value.
All in all, the process consists of four phases:
Pre-Petition Phase
During this stage, your main task is to gather the required paperwork (such as the deceased’s will, death certificate, and probate petition form) to initiate the probate process.
Appointment Phase
Probate starts once the will, death certificate, and probate petition form are submitted to the county court where the deceased lived. Then, the court picks someone, usually a family member listed in the will or a neutral third party, to oversee the estate.
Administration Phase
The executor then sends out a notice to all creditors, beneficiaries, and heirs to notify them that the estate is in probate.
Bank accounts, bonds, stocks, fancy stuff like art, cars, and watches, and real estate all make up the probate estate.
After tallying up everything and settling debts (sometimes by selling the real estate), the probate process moves towards closing.
Closing Phase
The executor will use the remaining funds to settle the court fees, attorney’s fees, and taxes.
In the final stage of probate, it is time to distribute assets (or any residual value left from the property sale) amongst the heirs and beneficiaries.
Do You Need a Probate Attorney?
Probate law can be complicated.
They vary by state. Sometimes, the property may not need probate.
So, it’s smart to talk to a probate lawyer who can explain the probate process. Plus, they can advise if you can sell the house before probate finishes.
Can You Sell a Deceased Person’s House without Probate?
Technically speaking, the answer is yes.
You can absolutely look for buyers or enlist real estate agents to sell the inherited property. There’s no legal block preventing you from accepting a cash offer or attempting to sell the house before probate finishes.
But to finalize the deal, you must complete the probate process to sidestep legal issues and confirm ownership of the property you’re selling.
What are the Ways to Avoid Probate on a Deceased Person’s Estate?
Inheriting property can be a lengthy process, prompting questions about avoiding delays while staying within the law.
Smart planning can help sidestep the complexities of inherited real estate. Here are your choices:
Living Trust
If there are multiple beneficiaries, this is the way to go.
A living trust is a legal arrangement that designates someone as the beneficiary and the property owner as the trustee. For example, you could be the beneficiary while your parents act as the trustees.
Living trusts can either be:
- Revocable – a trust that can be amended within the trustee’s lifetime
- Irrevocable – a trust that cannot be changed
When the trustee passes away, the estate’s ownership automatically transfers to the beneficiary.
But, keep in mind, a living trust only helps avoid probate, not taxes. So, you still need to fulfill all tax responsibilities during an estate sale.
Jointly Owned Property with Right of Survivorship
This is also known as joint tenancy. It means that if one of the co-owners dies, the property automatically goes to the other owner, who then has complete legal control over the property.
Tenancy by Entirety or Community Property Law
This option is only available to married couples.
Tenancy by entirety is like joint tenancy, where the surviving spouse gets complete ownership of the property when the other dies, skipping probate.
Not every state recognizes tenancy by entirety, especially in community property states, where they use terms like community or marital property instead.
Death Deed
In some states, you can skip the probate process via a Transfer upon Death deed.
This document transfers ownership of property directly to the inheritor, skipping the troubles and costs of probate. Like a living trust, it doesn’t shield you from taxes and expenses when selling the inherited property.
Independent Administration of the Estate Act (IAEA)
If you’re the personal representative, you can sell a property before probate finishes as long as you follow the law.
Remember, you can’t have a personal stake in the property, so you can’t sell it to yourself. You also need to inform everyone involved in the estate about the sale.
Frequently Asked Questions: Selling Probate Property In San Francisco Bay Area
Is it Required to File a Will in Court?
Laws about inherited property differ by state, but submitting a will is always required, regardless of whether the property has to go through the legal process of probate.
Not submitting a will can lead to significant legal issues if beneficiaries or creditors are left out and choose to take legal action.
What Happens if a Person Dies without a Will?
If a person dies without as will, or a will is declared to be legally invalid, the person is said to have died intestate.
When this happens, probate is required and the responsibility of administering and distributing probate property falls to the probate court
How Soon Can Probate Begin, and Is There a Time Limit To Initiating the Probate Process?
In certain areas like San Francisco Bay Area, it’s mandatory for the executor to submit the will within 30 days of someone passing away to start the probate process. But generally, there is no time limit in initiating the proceedings. However, waiting to file doesn’t offer any advantages, so it’s smart to submit the probate petition promptly.
Can Probate be Completed without the Involvement of Probate Court?
Sure. Sometimes, probate can happen without much court involvement, known as informal probate.
Sure. Sometimes, probate can happen without much court involvement, known as informal probate.
In some places, informal probate is handled by the probate registrar, without direct court oversight.
This happens when everyone involved in the estate agrees, and there are no legal or administrative issues.
The executor, or the person in charge legally, must handle the probate property properly.
What Happens if There are Not Enough Liquid Assets to Pay Off Debts?
Sometimes, if the person who passed away didn’t leave enough money to pay debts, the person in charge, called the executor, has to sell the property before finishing the legal process called probate. Then, they use the money from selling the property to pay off the debts. If there’s still not enough money, the executor talks with the people owed money, which is called abatement. After all the debts are paid off, whatever money is left (if there is any) is given to the people who inherit, called beneficiaries.
Are There Assets that Don’t Need to Undergo Probate?
Not all assets have to go through probate upon a person’s passing. These assets include:
- Retirement accounts with a named beneficiary
- Property held in a living trust
- Property held in joint tenancy, tenancy by entirety, or those considered community property
- Wages or commissions due to the decedent
- Funds, stocks, or bonds registered with a Transfer-on-Death form
Is There a Threshold Amount for an Estate to be Exempt from the Probate Process?
If the property is modest, heirs may avoid probate altogether
In certain states, you could submit a sworn statement to obtain a property with a market value below a specific limit.
The limit varies by state; some only offer this option for non-real estate assets. It’s wise to seek advice from a probate attorney on this.
Do I Need Probate to Sell My Mother’s House?
Unless your mother’s house is held in a living trust, named for you in a death deed, or includes you as a joint tenant, you need to complete the probate process before you will be able to sell.
Final Thoughts:
Do You Need Probate To Sell a House in San Francisco Bay Area?
In its core, probate is about protecting the assets of someone who has passed away and ensuring they go to the rightful inheritors.
The question “Can you sell a house before probate?” has a straightforward answer: yes, if probate isn’t necessary.
Whether you want to sell a house before or after probate, most homeowners aim for a quick sale.
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