Can You Empty a House Before Probate? Why It’s Usually Best to Wait

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When a loved one passes away, surviving family members may be eager to sort and clean out the contents of the estate home. However, it’s usually best to hold off on this process if you aren’t sure who owns the property or the items inside.

Even if you are pretty confident about next steps, it may be necessary to determine whether the home will need to go through probate and if so, complete that process first.

This may seem counterintuitive when you know you have a major house cleaning project ahead of you and face a limited window to get it done.

But it’s often critical to settle the estate before anything else. Read on for guidance on how to navigate probate to make sure you’re in the clear to begin emptying a home.

A courthouse, where you might find out if you can empty a house before probate.
Source: (Robert Linder / Unsplash)

What is probate?

The term probate refers to the legal process through which the loved one’s will is reviewed, and a representative or executor is appointed to administer the will and distribute any assets — or, in some instances, to make arrangements and disbursements and distributions from the estate in the absence of a will.

This probate process is typically much more straightforward when there is a will outlining the deceased’s wishes as to how they would like their belongings and valuables distributed, their home included. This combination of the deceased’s real and personal property, as well as other and other assets is known as the estate. 

In the event an individual passes away without having a will, the probate process varies depending on the deceased’s state of residence, and where the different assets that comprise the estate are located.

“If there is no will, every state has a probate code and intestate code. The term intestate means no will — so if you died without a will, they use the process defined by the state,” says James Rhyne, a real estate attorney based in Charleston, South Carolina, who handles probate cases.

The intestate process is complex and may not turn out the way every family member wishes. Certain assets are “off the table” until they can be evaluated by the court system — which can further delay probate and further hinder those plans to clean out the house.

Why can’t I clean out the house now?

If your relative’s estate needs to go through probate, it’s best not to touch anything in the home until given the green light. The items in the home are actually separate from the property’s lot and the home structure itself, according to Rhyne — and all items will need to be considered separately as part of the estate.

“The [house] deed really only talks about the dirt and the structure, and the insides and contents of the home are all probatable assets,” he says. “You should never remove any of the contents until the estate is settled.”

Steven Padilla, a top real estate agent in the Los Angeles metro and a specialist on the probate process, echoes Rhyne’s statements on waiting for more instructions before you clear anything out or claim items.

“The family shouldn’t start cleaning the home out,” he says. “It’s not their property — it’s like you going to the bank and saying, my mom passed away, and I want to empty out her account —  because no, no you can’t. You need authority.”

A person researching online if they can empty a house before probate.
Source: (Christina @ / Unsplash)

Is there anything I can do in the meantime?

As you wait for the estate to be settled, you can get a free home value estimate from a tool like HomeLight’s Home Value Estimator (HVE). Enter your address and answer a few basic questions about your home, and we’ll provide a preliminary home valuation in less than two minutes using public data and recent sales records. While this estimate is not a substitute for an appraisal, it can help you get familiar with current market trends if you plan to sell the property or are coordinating a buy-out among family members.

Get a Free Home Value Estimate

Even if you can’t sell or clean out the house quite yet, you can request a preliminary home value estimate to orient yourself in the process.

How to settle the estate

After a loved one dies, the last thing you want to deal with is paperwork and legal proceedings. However, you are often required to settle the estate before you and family can clean out the home, sort through valuables, and decide whether you plan to sell or keep the property.

If there’s a will

Hopefully, your loved one left behind a will with explicit instructions on who should receive what. If you aren’t sure where the will document is located, check with the estate attorney. It may also be stored in a secure place — like a locked safe — inside the home. Check with other relatives, since one of them might already be the executor.

Once you find the will, the member of your family who is named the executor will file it with probate court along with the death certificate. A probate attorney can help with this task. And, the chosen executor of the estate should complete the rest of the necessary probate steps (a few of which are outlined below) and ensure the estate is settled the right way.

If there’s not a will

If no will exists, someone will still need to file the death certificate with the probate court. Certain laws will come into play in the absence of a will, and one of the deceased’s children or grandchildren will likely be named the administrator of the estate.

The terms administrator and executor both refer to the person who is responsible for settling the estate, but the administrator is appointed by the probate court (that is, when the deceased is intestate), while the executor is appointed by the deceased’s will.

In the absence of a will, most state codes divide any remaining estate assets (including real estate) between living children or grandchildren, according to Rhyne.

“Most states default to the kids, and if one of the kids has passed away, their other kids or grandkids split their share. Most states say that your spouse and your kids cannot be cut out of will — or cut out even if there’s no will — but the code defines these things,” he says.

Other tasks the executor may need to complete

If you are appointed administrator by the probate court (or you were named the executor in the will), there are likely a few additional steps you’ll need to complete to properly close out the estate, including:

  • Notifying different offices — such as the social security office — of the death so that bills and deposits are stopped.
  • Appearing in court on behalf of and to represent the estate (as may be required).
  • Setting up a bank account for the estate to accept final incoming deposits and pay any final bills.
  • Taking an inventory of the assets of the estate, including accounts, automobiles, stock accounts, valuable artwork, other personal property and more. Oftentimes executors will also likely need to hire an appraiser, and will almost always be required to file the inventory of assets with the probate court.
  • Taking care of the property until it is sold or distributed to an heir. This includes maintaining utilities and ensuring the home is in inhabitable condition.
  • Preparing to pay off any debts on the estate before assets can be distributed to any heirs.

Exceptions to the probate process

In some estate arrangements, probate can be avoided. These include:

Established trust

The probate process can be lengthy and stressful (especially if there’s no will involved) so many families choose to eliminate the need for probate with the creation of a trust.

A trust grants a designated “trustee” the right to hold all assets for the purpose of dispensing to beneficiaries according to the wishes of the deceased, effectively nullifying the need for the court to step in.

“If you have a trust, the estate does not get probated at all,” Rhyne notes. “The trust owns the property, so the property has already been transferred — therefore, there is nothing to be probated. The trustees own it.”

Not only does a trust establish who owns the property and other assets prior to the death, it’s also a way to save money, adds Padilla. You’ll pay fees to establish a trust, but the probate process is likely to cost even more — potentially as much as 7% of the entire estate.

Joint-owned property

Probate can also be avoided when property is held jointly. In these cases, the estate is owned by the other party right away, without the need for probate. While it’s most common with married couples, property can be held jointly among other relatives or even friends.

“If the property is owned jointly, most states deem that when one owner dies, the other person owns the property,” Rhyne says. “So, for example, if I die, my wife instantly owns our house. She doesn’t have to do anything. And if she wanted to sell the property, she could, in good faith, put it on the market the day after I died. And she’s the only person who would have to sign it over to a buyer.”

A person cleaning a house, which can be done after probate.
Source: (CDC / Unsplash)

Estate settled? Now, you can clean

Once you’ve got the estate settled and you’re ready to sort and clean out the home, stay organized with this list of tips for tackling what’s likely to be a big project.

Come up with a system

Simplify the sorting process by coming up with a labeling system. Mark certain boxes and packages with donate, keep, or sell to make categorizing easier. You can also use color coding for instant recognition of what goes where.

Determine what to toss, recycle, or donate

Next, purge items that must be tossed, sending anything that is broken, stained, ripped or damaged into the garbage. Donate what you can if an item remains in decent condition.

You can rent a small residential dumpster for an average of $380 per week. A small dumpster of 10 cubic yards, or 11 feet by 8 feet by 4 feet, holds 2 to 3 tons and is likely what you’ll need for the average home cleanup.

Donate lightly used clothing, toys, and dishes. Recycle old magazines and take dated electronics to your local electronics recycling drop-off.

Discuss sentimental items

Items that don’t have any market value but are still sentimental among the family (such a relative’s favorite coffee mug) should be discussed to determine a recipient. It may make it easier to display any items you think someone may want to claim on a few tables for easy viewing. Invite relatives over for a “family estate sale” and go round-robin picking up-for-grabs trinkets, artwork, and collectibles.

Hire an appraiser if necessary

The executor of the will is the one to hire the professional appraiser, however, in some states, the absence of a will means that the court will hire their own appraiser. In California, for example, a third party called a probate referee takes care of overseeing valuable items, says Padilla.

“In our state, the court has their own internal appraiser, which is called a probate referee. The probate referee appraises the property, and they give a value for the personal items and also the real estate,” he says.

Enlist the help of a real estate agent

A real estate agent familiar with your local probate laws and the unique challenges to a probate sale can help ensure that the home is adequately prepared for the sale and that you command a fair price for it. If you aren’t sure how to find probate real estate agents in your area,  HomeLight would be happy to connect you with a few qualified candidates.

Go through the right channels, and don’t rush

In some cases, the probate process can take the better part of a year or longer if there are complicating factors. The best thing you and the rest of your family can do is be patient and make sure the estate is settled the right way to avoid errors.

If you’re itching to get items out of the house before the probate process ends, you can relocate items to a storage unit, suggests Rhyne — but you still can’t sell anything or list the home prematurely.

“I wouldn’t say you have to leave everything in the house. Yes, that’s the simplest approach, but you can also move it to a storage unit or to somewhere else until probate is figured out,” he says. “But you can’t take a home and put it on the market tomorrow when you don’t even know who owns it!”

Header Image Source: (Sasun Bughdaryan / Unsplash)