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Can You Live in a House During the Probate Process?


If you’re an heir or a designated occupant, you may be allowed to stay in a home during probate. However, living in the house does not grant you ownership rights until the process is complete. Additionally, the costs of maintaining the home, such as utilities and property taxes, must continue to be paid, typically by the estate, so the executor or personal representative who typically manages the property during the probate may want you to cover those costs while you live in the house.

If you need help with estate planning, a financial advisor can recommend strategies to protect your assets and minimize your tax liability.

Understanding the Probate Process

The probate process occurs after someone passes away, during which their estate is administered and distributed according to their will or state laws. Probate ensures that the deceased’s debts are paid and the remaining assets are distributed to the rightful beneficiaries.

This process is important because it provides a structured and legal framework for distributing a deceased person’s assets. It can also help prevent fraud, and, for beneficiaries, it can offer clarity and legal backing.

Probate begins with the validation of the deceased’s will, if one exists. This involves the executor, named in the will, submitting the document to a probate court. The court then assesses the will’s validity and oversees the executor’s administration of the estate. If there is no will, the court appoints an administrator. The executor or administrator will inventory assets, pay off debts and taxes, and distribute the remaining assets to beneficiaries.

Probate can be a long and complex process, and laws vary significantly from state to state. Some states expedite the process through streamlined procedures for smaller estates or when all parties are in agreement. Others may have more intricate requirements, requiring thorough documentation and potentially prolonged court involvement. You must adhere to the specific probate laws in your state or consult with a legal professional to navigate the process effectively.

Rules for Living in a House During Probate

When it comes to whether or not you can live in a house during probate, the answer is generally yes, but not always. If you were living in the house before the probate process began, you can usually continue to do so. However, if the house is part of the estate, its ultimate ownership might be subject to change based on the will or state intestacy laws. Executors or administrators may need to maintain the property until it is transferred to the rightful heir, which might include paying the mortgage, property taxes and insurance.

Typically, immediate family members who were living in the house before probate continue to do so. However, allowing new occupants to move in during probate usually requires the executor’s permission because they have the authority to manage the property during probate. The executor may impose restrictions on who can live there to make certain that the process proceeds smoothly.

There are circumstances where you cannot live in a house during probate, like if the will explicitly states that the house is to be sold and the proceeds get distributed among the heirs. Additionally, if the executor decides selling the property is necessary to pay off the decedent’s debts, occupants might also be required to leave. You should review the will and consult with the executor to understand your rights fully.

Even if you’re allowed to live in the house during probate, there are restrictions to consider. Major renovations or significant changes to the property are generally prohibited and occupants are responsible for maintaining the property and paying for utilities and other ongoing expenses.

How Real Property in an Estate Is Treated During Probate

A senior woman speaking with an estate planning lawyer about probate.

When a loved one passes away, their estate, including real property, must go through probate, but the treatment of real estate during probate depends on whether the decedent left behind a will or a trust.

If the decedent had a will, the real estate is managed according to their specified wishes. The executor named in the will is responsible for settling debts and distributing assets, including real estate, to the beneficiaries. The probate court oversees this to make sure all legal requirements are met.

When there is no will, the court appoints an administrator to handle the estate, including the real property. The property is then distributed according to state law, which typically prioritizes spouses, children and other close relatives. Without clear instructions from a will, the process can be more complex and time-consuming.

If the real estate is held in a trust, it bypasses probate altogether. The trustee, designated by the decedent, takes over the management and distribution of the property according to the trust’s terms. This simplifies the process, reduces legal costs and expedites the transfer of property to beneficiaries. Living in a house during probate is not applicable in this scenario since the trust manages the property outside the probate system.

Regardless of the presence of a will or trust, it’s important to consider the financial obligations tied to the real estate during probate. This includes mortgage payments, property taxes and maintenance costs. These expenses must be managed to prevent foreclosure or property degradation, impacting the estate’s overall value.

Selling a House During or After Probate

Selling a house during probate typically requires court approval, which can delay the sale several months. However, a potential sale does affect whether or not you can live in a house during the probate process. If the house needs to be sold during probate, an executor or personal representative must petition the court, providing valid reasons for the sale and demonstrating that it benefits the estate and its heirs. Once the court approves, the house can be listed and sold which means any occupants would be forced to move out.

Selling a house after probate is generally simpler, as the property is now owned by the heirs. Once probate concludes, the executor transfers the title of the house to the heirs, who can then decide to sell the property. Without the need for court approval, the sale process resembles a typical real estate transaction, allowing for a quicker and more straightforward sale.

Can You Rent Out a Home During Probate

During probate, the estate is under the jurisdiction of the probate court. This means any actions involving the estate’s assets, including rental properties, must often receive court approval. Executors or administrators, appointed by the court, are responsible for managing the estate’s assets and their actions must align with the deceased’s will and legal requirements.

Renting out a home during probate can have legal and financial implications. The executor must confirm that renting the property does not violate any terms of the will or state laws. Additionally, rental income must be reported to the probate court and may be subject to estate taxes. The executor also needs to make sure that the property is adequately maintained and that rental agreements comply with local landlord-tenant laws.

Obtaining court approval is often necessary before renting out a home in probate. This involves submitting a petition detailing the rental arrangement and its benefits to the estate. The court will assess whether renting the property serves the best interests of the estate and its beneficiaries. Additionally, all heirs must agree to the rental decision, as disputes can further complicate the process and lead to legal challenges.

Managing a rental property during probate requires diligent oversight. The executor must handle property upkeep, tenant relations and financial management. This includes collecting rent, paying property-related expenses and ensuring compliance with legal obligations.

Bottom Line

A couple reviewing estate planning options with an advisor.

You can live in a house during the probate process, but it can be complicated. Ensuring the property is maintained, managing any potential conflicts among heirs and working closely with a knowledgeable attorney can make a significant difference. You should know your rights and responsibilities, as well as the timelines involved in probate.

Estate Planning Tips

  • To maximize the legacy for your heirs, you’ll need a comprehensive financial plan and investing strategy. A financial advisor can help you with both. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now
  • There may come a time when you’re unable to make decisions for yourself. For that scenario, a living will or another form of advance directive can help ensure your family knows your wishes.

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