In this article, I will explain everything you need to know about selling a house without probate. We will also look at how probate works, how you can sell a house before and without probate and how Affidavit of Heirship, Small Estate Affidavit and Judicial Determination of Heirship work.
But, first thing’s first.
What is a probate?
First, let’s look at what a probate sale means.
The dictionary identifies several meanings of the word probate, however, in our case, it’s a method of administrating a property after you die.
Probate is used to transfer your property in an orderly matter.
Is selling a house without probate possible?
Yes. Your will determines the transfer of your estate during a probate. If you don’t have a will, the transfer is decided by the laws of your state – and that’s when you are able to avoid probate. In this article, I define 7 ways you can avoid probate and sell your house fast.
How does a probate work?
- Swearing in your personal representative
- The public and heirs are notified you are dead
- Your property goes through inventory
- Your estate is distributed
So how can I get away with selling a house without probate?
Selling a house without probate is a lot easier than you think.
A real estate agent might often tell you that your house cannot be sold unless it’s probated. They are WRONG.
Selling a house without probate is possible and it is, in fact, very common.
SFgate identifies four ways of selling a house without probate:
If you’re lucky enough and the decedent placed his property in a living trust, you will avoid probate. If you are named as a trustee, you are able to sell the house without probate court approval.
Jointly Held Real Estate
In California, joint tenancy is free of probate. If you are the executor and the co-owner of the property, you are also free of probate and have full authority after solo ownership.
Independent Administration of Estates Act
Independent Administration of Estates Act doesn’t really avoid probate, at least not completely. Instead, you are able to avoid probate under specific circumstances. 90% rule applies – as the executor, you can sell the house for at least 90% of its value. However, you must give notice to those interested in the property and get an approval from the court. This is bypassed if the deceased clearly states that you are solely responsible for the property after his or hers death.
Properties of a smaller or limited value can be appraised and filed for a smaller affidavit instead. Depending on the state, these values may differ.
Do you live in New York?
Here are three more ways you can sell a house without probate in New York.
Affidavit of Heirship, Small Estate Affidavit and Judicial Determination of Heirship
Affidavit of Heirship
You can use Affidavit of Heirship when your loved one died and didn’t leave a will, however, you are still left with a property.
In the case of no will, the probate is not needed. Just file the Affidavit of Heirship and sell your house FAST.
The Affidavit of Heirship requires two witnesses who must swear under Oath. The two witnesses must:
- State they knew the deceased
- The date and place of death of the deceased
- The relations to the deceased
- A statement of the deceased’s debts
- A statement that they will not gain financially from the property.
Small Estate Affidavit
The Small Estate Affidavit is filed in the same country in which the Decedent resided during the time of their death.
Along with the same information as was stated in the Affidavit of Heirship, the witness must also provide signatures of all heirs and two objective witnesses.
Please note that this option will only avoid probate if the property value is less than $50,000.
Judicial Determination of Heirship
If the deceased hasn’t left a will, Judicial Determination of Heirship can also be applied. In this case, the court acts in charge and determines the heirs, which can often resolve in a distribution of the property among these heirs.
Out of the three options, the Judicial Determination of Heirship is the most time-consuming and the most expensive. You will have to file an application with the Probate Court, the Court will appoint an attorney who will investigate the identity of the heirs and schedule a hearing once the procedure was done.
When someone dies without leaving a Will, the Court can conduct a formal Determination of Heirship. During this process, the Court will make a formal declaration as to the identity of the Decedent’s heirs. Pursuant to that declaration of the heirs, the Decedent’s property can be divided and distributed among the heirs.
Ready to sell?
Smith and Nelson, LLC, located in Rochester, will give you a cash offer on your property in less than 24 hours of making a request. As a bonus point, your property can be sold in less than a week.
We buy houses in the Rochester area. If you need to sell your Rochester area house fast and would like to get a no-obligation cash offer, call us now at 585-209-3144. Whether you decide to sell your house to us or not, Smith and Nelson, LLC would like to help answer questions you might have about the process.