When it comes to probate, real estate can get a little complicated. That’s why today, we’re going to take a look at what you need to know about real estate during the probate process.

Probate Real Estate: What You Should Know About Estate Property

We have written plenty of articles about the probate process here on the Weidner Law blog, but today we’re going to focus on one thing in particular – real estate.

Let’s begin by looking at one of the simplest questions – is real estate a probate asset?

If a property is titled in only the decedent’s name, then it is a probate asset.

If a property is titled in the decedent’s name and another person (tenancy in common,) then the decedent’s ownership is a probate asset.

If a property is a homestead property owned by the decedent or co-owned by the decedent (tenancy in common), it is not a probate asset.

If a property is owned by the decedent in joint tenancy with another person with rights of survivorship,  it is not a probate asset.

If a property is owned by a spouse as a tenant by the entirety, immediately passes to the spouse upon the death of the first spouse. It is not a probate asset.

If a property is listed on a transfer upon death form, it is not a probate asset BUT, only some states recognize the transfer upon death transfer or property. These states include:

  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • District of Columbia
  • Hawaii
  • Illinois
  • Indiana
  • Kansas
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Mexico
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • South Dakota
  • Texas
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin
  • Wyoming

Property held in community property with right of survivorship BUT only in states where community property is recognized. These states include:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

If a property is held in a living trust, it is not a probate asset.

Let’s pause for a moment to recap what a living trust is.

When someone owns a property and they create a living trust, they are creating an entity (the trust) that is managed by someone else (a trustee) and signing over their ownership of that property to the trust. When signing over ownership to the living trust, the property owner can also establish the pattern of inheritance upon their death. For example, they may instruct the trust that the property will pass to their firstborn child upon their death.

How Property Can Change the Probate Process

When it comes to probate, there are multiple probate options. The type of probate process that is best for your situation is determined by the value of your estate. Each state has different thresholds for which probate process is best for your estate.

Now, if your estate has a value that hits or exceeds the probate limit for a shorter probate process, you must go through the full probate process. HOWEVER, if your property has been signed into a

Below are the current probate laws for each state:


• Title 43, Chapter 2: Administration of Estates
• Title 43, Chapter 8: Probate Code


• Title 13: Decedents’ Estates, Guardianships, Transfers, and Trusts
• Title 13, Chapter 16: Probate of Wills and Administration


• Title 14: Trusts, Estates and Protective Proceedings
• Title 14, Chapter 3: Probate of Wills and Administration


• Title 28: Wills, Estates, and Fiduciary Relationships


• California Probate Code


(Choose “Colorado Revised Statutes” from left navigation bar)
• Title 15: Probate, Trusts, and Fiduciaries
• Title 15, Articles 10-16: Colorado Probate Code


• Title 45a: Probate Courts and Procedure


• Title 12: Decedents’ Estates and Fiduciary Relations


• Title XLII: Estates and Trusts


• Title 53: Wills, Trusts, and Administration of Estates
• Title 53, Chapter 5: Probate


• Title 30A: Uniform Probate Code


• Title 15: Uniform Probate Code


• Chapter 755: Estates
• Chapter 755, ILCS 5: Probate Act of 1975
• Chapter 760: Trusts and Fiduciaries


• Title 29: Probate
• Title 30: Trusts and Fiduciaries


• Title XV, Chapter 633: Probate Code


• Chapter 59: Probate Code


• Title XXIV, Chapter 394: Wills
• Title XXIV, Chapter 395: Personal Representatives


• CC 1575: Olographic testament
• CCP 2883: Olographic testament
• CCP 2851: Petition for probate
• CCP 2852: Documents submitted with petition for probate


• Title 18: Decedents’ Estates and Fiduciary Relations
• Title 18-A: Probate Code


• The Office of the Register of Wills (Estates and Trusts, Titles 1-16)


• MGL, Part II, Title II: Descent and Distribution, Wills, Estates of Deceased Persons and Absentees, Guardianship, Conservatorship and Trusts


• Chapters 701-713: Probate Code


• Chapter 524: Uniform Probate Code


• Title 91: Trusts and Estates


• Title XXXI, Chapters 456-475: Trusts and Estates of Decedents and Persons Under Disability


• Title 72: Estates, Trusts, and Fiduciary Relationships


• Chapter 30: Decedents’ Estates; Protection of Persons and Property


• Title 12: Wills and Estates of Deceased Persons

New Hampshire

• Title LVI: Probate Courts and Decedents’ Estates

New Jersey

• Title 3A: Administration of Estates—Decedents and Others
• Title 3B: Administration of Estates—Decedents and Others

New Mexico

• Chapter 45: Uniform Probate Code

New York

• New York Court Probate Forms
• General overview of NY Probate

North Carolina

• Chapter 47: Probate and Registration

North Dakota

• Title 30.1: Uniform Probate Code


• Title 21: Courts—Probate—Juvenile


• Title 58: Probate Procedure
• Title 60: Property
• Title 84: Wills and Succession


• Title 12, Chapters 111-118


• Title 20: Decedents, Estates and Fiduciaries

Rhode Island

• Title 33: Probate Practice and Procedure

South Carolina

• Title 62: Probate Code

South Dakota

• Title 29A: Uniform Probate Code


• Title 32, Chapter 2


• Texas Probate Estates Code


• Title 75: Uniform Probate Code


• Title 14, Chapter 3: Probate and Procedure for Construction of Wills


• Title 64.2: Wills, Trusts, and Fiduciaries


• Title 11: Probate and Trust Law

Washington, D.C.

• Certificate of Filing Will (pdf)
• Large Decedents’ Estates (ADM)
• Small Decedents’ Estates (SEB)
[Source: Probate Division, District Of Columbia Courts]

West Virginia

• Chapter 44: Administration of Estates and Trusts


• Chapters 851-882


• Title 2: Wills, Decedents’ Estates and Probate Code

Have Probate Real Estate Questions?

If you have questions about probate or real estate law, Weidner Law can help! Just pick up the phone and give us a call today at 727-954-8752!

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