Living in a Probate Property: What You Need to Know

When you inherit a property through probate, one of the first questions that may come to mind is whether or not you can continue living in the house. The probate process can be a complex and time-consuming process, and it's important to understand the legal and financial implications of living in a probate property.

In this blog post, we will explore the rights of executors and beneficiaries, the process of selling a house in probate, and how to navigate the challenges of living in a probate property.

The short answer is yes you can live in a house going through probate, at least most people can most of the time. There are things you should know. We'll help you understand what you need to know before making any decisions about living in a probate property.

What Is Probate?

Probate is the legal process of administering a deceased person’s estate. The process is court-supervised and involves organizing the deceased possessions and assets and distributing them to the beneficiaries. This will be done after all taxes and debts are paid.

During the proceeding, the executor of the will shall be named following the will or court appointment. He’ll be named after a petition and the original will have been submitted to the Surrogate’s court in the deceased’s home county.

The court will validate the will using the information gathered and appoint the executor. The executor will be asked to act in the capacity of the estate’s administrator. 

When a property is part of the estate, the house or property typically goes through the probate process.  This often leads to questions and concerns for many good reasons.  Houses have mortgages that need to be paid. They also have to be taken care of and if empty, the maintenance can be pretty high.

Although common, not all property has to go through probate. There are ways to plan for this and often avoid probate altogether. An example is a property that was passed automatically under a living trust or a joint tenancy that doesn’t have to go through the probate process.

Is Probate Time Consuming?

The time taken by the probate process varies from case to case depending on several factors. If a will was left, the process can be easier and take less time. The county of the deceased will affect the time too according to the pending number of cases. If there’s a big backlog, then it will take longer.

Before proceeding, all heirs should be notified. If it takes longer to locate and notify the heirs of the process, then the process will be delayed. Another thing that can prolong the time taken is objections. If there are objections to the will or to the appointment of the executor or administrator, the process can take a longer time.

The appointment of the executor marks the end of the probate period and the beginning of the estate administration. The executor will be given proof documentation to help them in matters such as a collection of assets and bank accounts access and management.

Can You Live In a House That Is Under Probate?

In general, if a person dies and owns real estate, the probate process will kick off with or without the will. This, however, won’t happen if the estate is passed on through joint ownership or a living trust. This happens automatically.

If a person dies, beneficiaries and heirs are left confused wondering if they should live in the house during a probate process or not. Sometimes, they could be living there without anywhere else to go.

If by the time the person died, you were still living in the house, then you’re allowed to continue living there while waiting for the probate process outcome. Usually, the house will be transferred to the beneficiary. If you don’t live in the estate, you will need to get permission from the executor before moving in. The executor will check the will first and decide if it’s wise to let you in.

If the house is your permanent home and you’re a beneficiary of the deceased, usually the house ownership will be passed to you after the will has been admitted to probate.

What if the House Is Under Mortgage?

The first role of the executor is to pay the debts and taxes of an estate before its distribution. Sometimes the deceased could be having debts and don’t have any other assets apart from the house. In such a case, the executor will be forced to sell the house in probate and use the money recovered to pay off debts.

The house must be sold according to the market value. If the debts can’t be paid due to insufficient funds, the house will be transferred to the person named in the will. If there was no will, the closest family member, usually a spouse or a child, will inherit the house.

Can You Rent Out a House on Probate?

The law doesn’t prohibit a house to be rented out during the probate process. The executor will decide based on various factors. If the house was being rented before the death of the deceased, the lease will remain in effect until its expiration.

If the lease expires during the probate process, the executor will decide whether they’ll continue renting out the house or sell it depending on the situation. They’ll check if they can pay off debts without selling the house and they may also need to consider the person supposed to inherit the house.

If the house wasn’t being rented out, the executor may decide to rent it out to gain the benefits that come with the decision. The house will earn rent money which can be used to pay off taxes and debts during the probate period. The tenant can also keep the house in good condition before it’s passed on to the rightful heir.

What Happens if the Executor Lives in the House?

The executor’s role is to act in the best interest of the estate and the beneficiaries. Living in the house may slow down the administration process.

If the executor chooses to live in the property, it could be seen as a conflict of interest and could raise questions about their ability to act impartially. It is important for the executor to consider the potential implications and to consult with a probate attorney before making any decisions about living in the property.

If they lived in the house before the death, they should consider moving out. If they continue living in the house, they should get permission from all beneficiaries.

If they permit the executor to continue living there, the executor should pay rent equivalent to the market rate. If the executor violates the duties, the beneficiaries should go back to the court to have the executor removed and a new one appointed.

Times When Living in a House During Probate Isn’t Allowed

When beneficiaries inhabit a house, selling it to recover funds or settle debts can be difficult. In such a situation, if you aren’t permitted by the executor or the house isn’t your permanent house, then you may not be allowed to live in the house. The administrator may be forced to evict the occupants.

This will be done either by obtaining an eviction through the landlord-tenant court or through turn-over proceedings done in the surrogate’s court. Usually, in such cases, it’s checked if the occupants should pay rent or continue living in the house during the probate period. The court can then ask the occupants to move from the property.

Conclusion: With Permission, It Is Possible to Live In a Probate House

In conclusion, whether you can live in a house in probate depends on the laws of the state where the property is located and the specific details of the probate process. It's important to understand the legal and financial implications of living in a probate property, including the rights and responsibilities of executors and beneficiaries.

While the executor has the legal right to maintain and preserve the property, including the right to live in it, it's important for them to consider the potential implications and to consult with a probate attorney before making any decisions about living in the property.

The same goes for the beneficiaries, they should consult with a probate attorney to understand their rights and responsibilities. Ultimately, the decision to live in a probate property should be made with the best interest of the estate and the beneficiaries in mind.