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.
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.
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.
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
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.