Skip to main content
Probate is the legal process that validates a deceased person’s will, settles their debts, and distributes assets to beneficiaries. For real estate, probate authorizes the transfer of property ownership from the deceased to the heirs. Probate occurs in the county where the deceased resided. If real estate is located in a different state, a separate ancillary probate may be required in that state.

​
When Probate Is Required

Real estate owned only by the deceased with no survivorship rights or trust arrangement must go through probate. The court must authorize transfer to the beneficiaries named in the will or determined by intestacy laws.
When the deceased owned property as tenants in common with others, their share passes through probate. The other owners retain their shares, but the deceased’s portion transfers according to the will or intestacy laws.
Intestate estates (those without a valid will) require probate. The court appoints an administrator and distributes assets according to state intestacy laws, which prioritize spouses, children, and other relatives.

​
When Probate Is Not Required

Real estate transferred to a revocable living trust before death bypasses probate. The successor trustee distributes trust assets according to trust instructions without court involvement.
Property owned as joint tenants automatically transfers to the surviving owner upon death. A death certificate and affidavit of survivorship typically suffice to update title records.
This form of joint ownership, available only to married couples in some states, includes automatic survivorship rights. The surviving spouse becomes sole owner without probate.
Some states allow property owners to file a transfer-on-death (TOD) or beneficiary deed. The property passes directly to the named beneficiary upon death without probate.
Many states offer simplified procedures for estates below a certain value threshold. These expedited processes reduce time and cost compared to formal probate.

​
Key Roles in Probate

​
Probate Timeline

Probate duration varies by state, estate complexity, and whether disputes arise. Simple estates with valid wills and cooperative beneficiaries move faster than contested or complex cases.
Total probate duration typically ranges from 6 months to over a year. Contested wills, creditor disputes, or complex assets can extend the process significantly.

​
Probate Costs

Probate involves several categories of expenses that reduce the amount ultimately distributed to beneficiaries.
Filing fees for probate petitions, certificates, and court appearances. Vary by state and county, typically ranging from a few hundred to several thousand dollars.
Probate attorneys charge hourly rates, flat fees, or a percentage of estate value depending on state rules and complexity. Some states set statutory fee schedules.
Executors are entitled to reasonable compensation for their work. Some states specify percentages; others allow “reasonable” fees. Family members sometimes waive compensation.
Real estate appraisals establish fair market value for estate inventory and stepped-up basis calculations. Accountants may be needed for tax filings and financial accounting.
Ongoing costs to maintain real estate during probate including insurance, utilities, property taxes, and necessary repairs.

​
Selling Property During Probate

Real estate can sometimes be sold before probate concludes, but the process requires court involvement. Court approval requirements:
  • Executor petitions the court for permission to sell
  • Court may require appraisal or market analysis
  • Some states require public notice of the sale
  • Court confirms the sale before closing
Considerations:
  • Probate sales may take longer due to court scheduling
  • Some buyers avoid probate sales due to complexity and uncertainty
  • Sale proceeds become part of the estate for distribution
Executors cannot sell estate property without proper court authorization. Unauthorized sales can result in personal liability for the executor.

​
What Heirs Should Do During Probate

​
Learn More

Probate Process (Legal)

Detailed legal information on probate procedures

Ownership Changes

Legal guide to transferring property ownership

Trusts and Real Estate

How trusts affect property transfer and probate avoidance

Title Ownership Options

Joint tenancy, tenants in common, and survivorship rights

Real Estate Attorneys

Finding legal help for probate matters

When You Need an Attorney

Situations requiring legal representation

Appraisers Overview

Establishing fair market value for estate purposes

Transferring Ownership

Deeds, title changes, and transfer methods

Next: Tax Implications

Stepped-up basis, capital gains, and inheritance tax considerations
Consult a probate attorney early in the process. State laws vary significantly, and procedural errors can delay distribution or create liability for the executor.