What is a Probate?
The definition of probate is a method of administrating property after you die. So, probate is used to transfer your property in an orderly manner.
N. Brain Caverly and Jordan S. Simon defined four processes to a probate:
- Swearing in your personal representative
- The public and heirs are notified you are dead
- Your property goes through inventory
- Your estate is distributed
Is Selling a House Without a Probate Possible?
In short, yes. Your will decides the transfer of your estate during probate. If you don’t have a will at the time of your death, the transfer is decided upon by the laws in your state – and that’s when you’re able to avoid probate.
Selling a house without a probate is a lot easier than you may think. A real estate agent will often say that your house cannot be sold unless it’s probated. They’re wrong. Selling a house without a probate is not only possible, but quite common.
SF Gate names these 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 can sell the house without probate court approval.
Jointly Held Real Estate
A joint tenancy with rights of survivorship account is owned by two or more people. When one of the people passes away, the ownership passes onto one of the account holders.
Independent Administration of Estates Act
Independent Administration of Estates Act doesn’t really avoid probate, at least not completely. Instead, you can 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.
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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.
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 quickly.
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 lived 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.
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Need to Sell an Inherited Home?
Your Austin Home Buyer, located in Austin, will give you a cash offer on your property in less than 7 days of making a request.
If you need to sell your Austin area house fast and would like to get a no-obligation cash offer, contact us today to set up a walkthrough appointment. Whether you decide to sell your house to us or not, Your Austin Home Buyer would like to help answer questions you might have about the process.