E209 Do Tenants in Common Need Probate_

E209 Do Tenants in Common Need Probate?


In a recent case, Liz’s dad had bought a co-op with his girlfriend. Liz’s dad broke up with his girlfriend but continued to co-own the apartment as “tenants-in-common.” Liz’s dad passed away, so what happens to the co-op now?

What Happens When a Tenant in Common Dies?

What happens when a tenant in common dies?

Unless there is a specific percentage for the tenants in common, the property divides equally.

If they had owned as “joint tenants” instead of “tenants-in-common,” then the girlfriend would become sole owner. But, the co-op shares certificate states “tenants in common.” So the girlfriend is a half owner, and Liz’s dad’s estate is now a half owner.

Is Probate Required for Tenants in Common?

Is Probate Required for Tenants in Common?

The short answer is yes. Liz and her siblings must probate their dad’s estate to inherit their half share of the co-op. Right now, Liz and her siblings must appoint an executor who has legal authority to conduct business for the estate. A court-appointed executor has the right to enter the premises, to gain information from the co-op, and eventually to sell the property.

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E195 How to Sell a Deceased Person's House

E195 How to Sell A Deceased Person’s House

Quite often we are asked by family members and heirs what the process is to sell a deceased person’s home. It can be a complex and typically you should have a lawyer, but this blog shares a general understanding of how it works and what you can do to get started.

Did the Deceased Own Property?

While most people assume that the decedent owned their home, we have seen on many occasions that isn’t the case. For example, they may have been renting or owned the home jointly.

Did the Deceased Own Property?

The first thing you should do is look up the deed. This is actually easier than you think. Most counties have online searching capabilities, and a quick Google search will help you find the right place (the New York City system is called ACRIS). By pulling the deed, you will be able to confirm if the property was owned by the decedent, owned along with another person, or owned by someone else.

Two Names on Deed, One Person Dies

You may discovery that the decedent owned the property along with another person. If it’s a husband and wife, then you generally don’t need to do anything in terms of probate. The house will simply go to the wife.

Similarly, if it is a Joint Tennant deed, wherein two people are the joint owners. Using Jack and Jill for this example, then the house would be solely owned Jill if Jack dies, without having to go to probate court.

Lastly, the deed may say that Jack and Jill are the non-married owners or Tenants in Common. If that’s the case and Jack dies, then Jack’s estate still owns 50% of the property. You would have to go to probate court to deal with Jack’s half.

What Happens to House in Trust After Death?

Another scenario you may discover when you review the deed is that the house is owned by a trust. In this situation, you need a copy of Jack’s Trust to see what should happen to the property when he dies. You most likely can avoid probate court, depending on the trust wording.

Didn’t Own His Home

As we mentioned, it’s common for the person to not own their home at all. They could be a renter, be living in a home owned by a deceased grandparent, etc.

It’s important to pull the deed to figure out the ownership so you can move forward properly.

Do You Need Probate to Sell A House or Can You Sell a Deceased Person’s House Without Probate?

The short answer is yes, you can sell it without probate if the property was owned by a spouse or in a trust. However, if it’s in the decedent’s name alone, then you will need to go through the probate process.

Do You Need Probate to Sell A House?

PRO TIP: Some will try to tell you that technically you can sell without probate, with simply signing a document called an Affidavit of Heirship. Some fast-moving brokers may try to sell you on this idea. However, be aware that in most cases the title company may not accept it. The title company does not want the liability of ensuring that there are no issues with the estate and property. It’s too risky for them.

How to Get Access to House After Death

Another reason you may have to go through probate is to gain access to the house. In New York, if a decedent died at home, then the house is sealed with police tape. No one can enter the house until you have proof that you are entitled to be there. If the home is in a condo, co-op, or other managed building, they’ll want to see proof of authority before giving access. This proof comes from the court in the form of Letters of Testamentary.

Who Does Probate Protect?

Although you may think you want to avoid probate at all costs, that may not be the right concept. Probate is a process meant to protect you as an executor as well as the heirs. It safeguards all parties from being held liable for debts, such as the IRS and creditors that may come up down the road.

Considerations When Choosing an Executor

Specifically relating to selling a deceased person’s property, there are a few key points to keep in mind. See How to Choose an Executor, which digs deeper into how to choose an Executor.

Considerations When Choosing an Executor

Does Executor Have to Live in Same State?

Technically, no. You can be a US citizen and live outside of the state. But there are major drawbacks to not living in the state where the estate is probated.

Do I Have to Travel to New York for Probate?

Yes! Although as the executor it’s not technically required to live in New York, be aware that the executor will need to travel to New York. Typically, this is not just one trip. Even though we’re in 2020, some things still must be done in person, such as opening an estate bank account. So yes, living in New York is the best option.

When is an Estate Bond Required?

Bonds are sometimes required of the executor by the probate court. To get a bond, the executor will need excellent credit. When you are deicing about an executor, make sure it’s someone who will qualify. Those with financial issues and bankruptcies are not good candidates. They most likely will not get a bond.

How to Empty a House After a Death

When it comes to a deceased person’s home, not only do you have to empty the contents, but you may have to remove people that live there.

Eviction After Death of Owner

There are times that eviction may be necessary to remove a tenant. Commonly, once the owner dies, tenants feel they don’t need to pay, essentially living rent free. Therefore, eviction is necessary to be able to sell the home.
Eviction is a long process which takes on average 6 to 9 months. Therefore, you should get the ball rolling right away. If you wait for the tenants to do it on their own, you may add months or even years to the process.

Can an Heir Be Evicted?

Absolutely. Even if it’s family. While there are steps and complications, it can be done. And it may be necessary for it to be done.

Removing Items from House After Death

How to Empty a House After a Death

Lastly, you will need to clean out the items from the house, possibly disposing of the belongings. When serving as a professional executor, we take photos and videos of everything. After items are distributed according to the will, we send the photos to the heirs and ask what they would like. From there, we either have to find others that would like the items, donate them, or simply dispose of what is left.

Request your free consultation

Sign-up for your free consultation using the form above, and I’ll be happy to email you a free chapter from Anthony’s best-selling bookHow Probate Works.”

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How to Deal with Nightmare Tenants in Probate

E157 How to Deal with Nightmare Tenants in Probate


One bad tenant can blow up any real invest investment. Being a professional executor has shown me just how nightmarish a tenant can be.

We’ll discuss:

  1. Which estates have nightmare tenants?
  2. What are “nightmare tenants?”
  3. What to do about bad tenants?

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E146 How Do I Sell My Deceased Parents Home

E139 How Do I Sell My Deceased Parents Home


Selling a Decedent’s home, especially parents, can be tricky. So we’ll share some tips from our experience as executor and probate attorney

  1. Who owns it?
  2. Go to court
  3. Vacate the house
  4. Clean it out
  5. Only minimal prep

Lastly, I talk about how to deal with a common problem: the wannabe flipper

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READ

Pick up my books on Amazon. Reviews always appreciated!

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JOIN

Sign up to my email list for book announcements

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WATCH

Subscribe to my YouTube channel

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LISTEN

Subscribe to the “Simple Money Wins” podcast at:

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