When a loved one dies, the family begins the difficult task of sorting through that person’s property and settling their estate. The decedent’s will often indicates how property should be distributed. But when it doesn’t, the family can be left with the task of selling their loved one’s house. This can be an especially burdensome responsibility, and it can have a significant effect on the probate process.
Jump ahead to these sections:
- How Long Can an Executor Have to Wait to Sell a House After Someone Dies?
- Can an Executor Sell a House Without Probate?
- How Long Can an Executor Delay Selling a House After Someone Dies?
- Can a House Stay in a Deceased Person’s Name?
Deciding when to sell your loved one’s house requires careful consideration. Should you accept the first offer to sell the house quickly? Should you invest the estate’s money into repairs and upgrades to get a better price? Do you have to sell the house within a certain time period?
These are all questions that the family and the executor of the estate will have to answer. This article discusses the many factors you must consider in answering these questions.
How Long Can an Executor Have to Wait to Sell a House After Someone Dies?
When someone dies, the family can’t just divide their loved one’s property as they see fit or take possession of the property left behind. Every state has probate laws for how a decedent’s estate, which includes their house, must be handled upon their death. These laws help facilitate the efficient administration of a person’s estate.
Probate laws vary from state to state, but in general, all states require that unless a person’s house is passed on through a trust or by title held in some form of joint ownership, then the property must pass through the court’s probate process. And this can take time.
Even when someone leaves their house to beneficiaries named in their will and all the beneficiaries agree to sell the house, the house cannot be sold right away. At the same time, the person responsible for selling the house (called the “executor”) can’t just take as long as they want to sell the house. The executor may have good reasons for selling the house quickly or delaying the sale of the house, but the executor is always subject to the rules of probate.
Can an Executor Sell a House Without Probate?
Generally, the only times a house can be sold after the owner’s death without probate is if the owner left the house to a beneficiary named in a trust or if the owner held the property jointly with someone else, who may receive possession of the house through the transfer of legal title.
A trust is not subject to the probate process. Instead, it’s administered by a “trustee,” who is responsible for disposing of the property according to the terms of the trust. With specific forms of joint title, ownership of the property automatically passes without the need for the court’s approval in probate.
An “executor” becomes responsible for selling a house when they are named in the owner’s will and the owner dies. The person named in the will as the executor becomes responsible for filing the owner’s will in probate court. Once the court authorizes the executor to take control of the owner’s property and dispose of their estate, the executor can begin the process of selling the house. But they are always subject to the oversight and authority of the probate court.
If you are named as the executor of a loved one’s will and your loved one owned a house when they died, it will be your responsibility to sell the house. But you cannot do so until the probate court authorizes it and approves of the sale. How long this takes will depend on a variety of factors.
How Long Can an Executor Delay Selling a House After Someone Dies?
Every state has rules for how long an executor has to file a decedent’s will to open the probate process.
Many states require the will to be filed within 30 days. Some states set a longer time limit. Others simply require that it be filed within a reasonable amount of time. Once the probate process begins, however, there’s no real time limit on how long an executor has to sell the decedent’s house.
To complicate matters more, there are several reasons why you may benefit from delaying the sale of the house, as well as reasons to avoid delay.
Reasons you might delay the sale
As the executor of your loved one’s estate, there are a few reasons why you may want to delay the sale of your loved one’s house after they die:
A common reason for delaying the sale, especially for children of the deceased, is that it can be difficult and painful to let go of a house that you grew up in or a house that holds positive memories of your parent or loved one.
You may also want to delay selling the house until you can quell any tension or volatility among family members or beneficiaries, who may disagree about whether or when to sell the house.
Acting in the best interest of the estate
As executor, you have a fiduciary duty to your loved one’s estate, as well as to the beneficiaries of the will (or your loved one’s heirs, if there is no will).
Having a fiduciary duty means that you’re not just acting out of kindness or necessity, but you’re acting with a legal and ethical responsibility to benefit the estate and the beneficiaries when you dispose of your loved one’s property.
In selling the house, that responsibility might include waiting to sell the house until it can be cleaned, repaired, and properly presented on the market to obtain the highest value.
Seeking the opinion of a professional
Rather than selling the house for the first offer you receive, it may benefit the estate and the beneficiaries to retain a professional real estate agent who has experience selling inherited property and knowledge of the local real estate market.
Reasons not to delay the sale
As executor, you have a fiduciary duty to consider a host of factors that will determine the best time to sell the house. At the same time, you must recognize that delaying the sale of the house may create other responsibilities, some of which can be expensive for the estate.
The bottom line is that, although some delay in selling the house may be advantageous, as executor, you cannot delay so long that it affects the proper administration of the estate or negatively prolongs the probate process.
Maintaining the value of the house
When a decedent’s house is left unoccupied for an extended period of time, many insurance companies will require that you obtain additional insurance on the property because it becomes more vulnerable to vandalism and depreciation from lack of upkeep. The longer this goes on, the more expensive it can be and the more difficult it will be to sell the house.
As executor, you are legally responsible for maintaining the house in good condition to obtain the highest value for the beneficiaries when it is sold. This normally requires obtaining additional insurance, paying for utilities, making repairs, mowing the lawn, and continuing any services necessary for the house’s upkeep. These weekly or monthly expenses may not be cost-effective in selling the house.
Finalizing the estate
Even if you dispose of all the other property in your loved one’s estate according to their will and pay all the taxes and debts of the estate, if you don’t sell the house, the court cannot close or finalize your loved one’s estate.
In most states, as executor, you’re responsible for providing an accounting to the court of all the property in the estate and how you plan to dispose of it. Only when the court approves your accounting will it close the estate and terminate the probate proceedings. If you have not sold the house, the court cannot distribute proceeds to the proper beneficiaries and will not be able to close the estate.
Weighing the options
As executor, you must balance the benefit of delaying the sale of the house for practical reasons that may increase the fair market value of the house with the additional costs that may be associated with such a delay.
You must keep in mind that although there is no hard and fast time limit for how long you have to sell the house, your sale of the house may directly affect (or be affected by) the requirements of the probate process. The longer you delay, the longer it will be before the court will approve the distribution of property to beneficiaries and close the estate.
Can a House Stay in a Deceased Person’s Name?
When a person dies and their estate is probated, whether there’s a will or not, the end result is that title to the person’s property is transferred to someone else.
If there’s a will, the title and legal ownership of the house passes to the named beneficiaries. If there’s no will, ownership passes to the decedent’s closest living heirs through a part of the probate process called “intestacy.”
Unless the house passes outside of probate—through a trust that’s named after the deceased person, for example—title to the property will eventually pass to a new owner who becomes the sole title-holder.
Even if ownership of the house automatically passes to another owner through joint tenancy or a right of survivorship, the new owner will register the title in their own name by filing a certificate of death that allows the surviving owner to hold title solely in their name.
The purpose of the probate proceeding is to transfer the legal title of the decedent’s property to others so that the decedent’s estate may be closed. The court will not end the probate process until all property, including the house, is properly transferred to its new rightful owner under the law.
Deciding When to Sell a Loved One’s House after Death
Selling a loved one’s house after death is difficult. It can be especially difficult for an executor who is named as one of several beneficiaries. There are always emotional, financial, and practical reasons for an executor to either delay the sale of a loved one’s house after death or expedite the sale so that property can be distributed and the estate can be closed.
As executor, you have a duty to balance the factors that might affect the sale of the house. The probate laws of your state are designed to help you to make these decisions. The probate court will not pressure you into selling the house too soon, but it also will not allow you to delay too long.