I Have Inherited a House.  Does It Have To Go Through Probate?

 

No, not necessarily. It has to go through probate only if the decedent was the only person on the title.  If that is the case, only a probate judge can take that name off the title and put someone else’s name on it.

But there are many other situations where probate is not necessary or relevant. Look at the deed, and see if any of these apply:

1. A property with joint ownership. The deed will say “joint ownership”, “joint tenants”, or “joint tenants with right of survivorship”, and will have two or more names on it. If one of these persons dies, the other(s)  take over ownership automatically. They only have to produce a death certificate to the title company to get proper title.  If both owners die, and no other successor is named, it will have to go through probate.
2. A property where the deed says “by the entirety”. This is essentially the same as joint tenancy, but only applies to married people.
3. Properties in land trusts. These properties are technically owned by a Trustee, and not the person who occupies or benefits from them.  That person is called the “beneficiary”, but is for all intents and purposes the actual owner. The Beneficiary usually designates a successor beneficiary in case of his death, so if the successor beneficiary can prove to the Trustee that the original Beneficiary is deceased,  he will inherit the property without having to go to court.
4. Properties in other trusts: Often a person will set up other kinds of trusts in order to avoid the expense of probate for the heirs. An example of this is a revocable living trust.  Here too the title to the property will pass directly to the named successor with no need for probate.

However, there are some situations where a property has to be submitted to the probate court. Here are some common circumstances:

1. A property held by tenants in common. If the decedent had an ownership interest as a tenant in common, then he only owned a specific fraction of the property, say 50% or 33.3%, and others owned the rest.  If he designated an heir, the heir would only be able to step into his shoes and claim the same fractional ownership that the decedent had. This succession is not automatic; it would have to be approved by a probate judge.
2. If a trust (called a testamentary trust) is established in the decedent’s will, the disposition of the property would have to be approved by a probate judge.
3. A sole owner dies intestate.   This means “without a will”. Since the decedent left no directions for the disposition of the property,  it has to be decided by a probate judge, who will apply the inheritance laws of the state of the property.

By the way, if you can’t find the deed, don’t despair.  All deeds are routinely recorded at your county courthouse, and you can get a copy of it for a nominal fee.  You don’t need to have the original.