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:
- District of Columbia
- New Mexico
- North Dakota
- South Dakota
- West Virginia
Property held in community property with right of survivorship BUT only in states where community property is recognized. These states include:
- New Mexico
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:
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!