A common question posed by an heir of a deceased family member is whether or not a house that is part of the decedent’s estate can be sold before the probate process is completed. While that sounds like a simple “Yes or No” question, it can actually be a complicated process and must be followed carefully to avoid fines and penalties, and added delays.
What Is Probate?
Probate in Tennessee, according to NOLO, is a court-supervised legal process that may be required after someone dies. Probate gives someone--usually the surviving spouse or another close family member--legal authority to gather the deceased person's assets, pay debts and taxes, and eventually transfer assets to the people who inherit them
Completing the probate process in Tennessee commonly takes six months to a year, but can take considerably longer if someone contests the Will, or if the decedent dies without a Will in place.
The Probate Process
In most Tennessee counties, probate matters are handled through the Chancery Court. The Clerk and Master for the Chancery Court, under the Court’s supervision, may also help with the more routine matters within the process, since many counties only have one or two Chancellors/Judges overseeing probate matters. Once the initial steps have been properly taken to open the probate for an estate, selling a house that is part of the estate can be addressed.
Selling A House During Probate
A very specific process is required for selling a house before the estate's probate has been completed. But, it can be done, especially if the proceeds of the sale are necessary for taking care of estate expenses. In order to start the process of selling the house, the Executor or Administrator of the estate must file the proper paperwork with the Court in order for the sale to be considered, much less approved. Approval to proceed with the sale of the house can take up to 60 days, and sometimes longer.
During this process, while waiting for approval to sell the house, the executor is responsible for continuing to pay all associated costs for the property, including mortgage payments, property tax, homeowner’s insurance, utilities, and any necessary major repairs that could negatively affect the value of the home - a burst pipe or non-functioning heating unit, etc.
Traditional Sale vs. Cash-Sale
Whether the property is sold through an agent on the traditional real estate market, or by a cash buyer, it is not an immediate event. The court will assign professionals to appraise the property. Once there is an offer on the property, the pending sale is publicized and the Court will oversee an auction if there is more than one interested buyer.
Even though this seems like an inconveniently lengthy process, the sale can be approved prior to the conclusion of probate. However, If the house is being sold to pay debts of the estate, those will be taken care of first, prior to any money being dispersed to heirs.
Exceptions
There are exceptions written into Tennessee Probate Law, much the same as in other states in the U.S. For example, if a surviving spouse is a joint owner of the property, that person can sell the property once the Court has recognized their claim. This is a much quicker process.
CONCLUSION
The probate process, in general, can be confusing and overwhelming. The fact that laws pertaining to that process often vary from state to state can make it even more confusing. Regardless of those differences, one of the most pressing matters in dealing with the estate of a deceased loved one is frequently how soon the house can be sold or transferred.
Tennessee allows some exceptions for that particular issue. The title to real property that meets the terms of these exceptions can be transferred without having to go through the probate process. However, you may still have to wait to actually sell the property until all of the debts of the estate have been determined and paid. So consulting with an expert, like those at the Law Office of Jennifer L. Fiola, is a wise step to take in the process.
Contact us today to schedule a consultation.