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<\/a>What is probate?<\/h2>\n
The term probate <\/b>refers to the legal process through which the loved one\u2019s will is reviewed, and a representative or executor is appointed to administer the will and distribute any assets \u2014 or, in some instances, to make arrangements and disbursements and distributions from the estate in the absence of a will.<\/p>\n
This probate process is typically much more straightforward when there is a will outlining the deceased\u2019s wishes as to how they would like their belongings and valuables distributed, their home included. This combination of the deceased\u2019s real and personal property, as well as other and other assets is known as the estate.\u00a0<\/b><\/p>\n
In the event an individual passes away without having a will, the probate process varies depending on the deceased\u2019s state of residence, and where the different assets that comprise the estate are located.<\/p>\n
\u201cIf there is no will, every state has a probate code and intestate code. The term intestate means no will \u2014 so if you died without a will, they use the process defined by the state,\u201d says James Rhyne<\/a>, a real estate attorney based in Charleston, South Carolina, who handles probate cases.<\/p>\n The intestate process is complex and may not turn out the way every family member wishes. Certain assets are \u201coff the table<\/a>\u201d until they can be evaluated by the court system \u2014 which can further delay probate and further hinder those plans to clean out the house.<\/p>\n If your relative\u2019s estate needs to go through probate, it\u2019s best not to touch anything<\/strong> in the home until given the green light. The items in the home are actually separate from the property\u2019s lot and the home structure itself, according to Rhyne \u2014 and all items will need to be considered separately as part of the estate.<\/p>\n \u201cThe [house] deed really only talks about the dirt and the structure, and the insides and contents of the home are all probatable assets,\u201d he says. \u201cYou should never remove any of the contents until the estate is settled.\u201d<\/p>\n Steven Padilla<\/a>, a top real estate agent in the Los Angeles metro and a specialist on the probate process, echoes Rhyne\u2019s statements on waiting for more instructions before you clear anything out or claim items.<\/p>\n \u201cThe family shouldn’t start cleaning the home out,\u201d he says. \u201cIt’s not their property \u2014 it’s like you going to the bank and saying, my mom passed away, and I want to empty out her account \u2014\u00a0 because no, no you can’t. You need authority.\u201d<\/p>\n 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)<\/a>. Enter your address<\/a> and answer a few basic questions about your home, and we\u2019ll 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.<\/p>\n \n\n\n\n\n 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.<\/p>\n \n 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.<\/p>\n Hopefully, your loved one left behind a will with explicit instructions on who should receive what. If you aren\u2019t sure where the will document is located, check with the estate attorney. It may also be stored in a secure place \u2014 like a locked safe \u2014 inside the home. Check with other relatives, since one of them might already be the executor.<\/p>\n Once you find the will, the member of your family who is named the executor will file it with probate court<\/a> 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.<\/p>\n 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\u2019s children or grandchildren will likely be named the administrator of the estate<\/a>.<\/p>\n 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\u2019s will.<\/p>\n 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.<\/p>\n \u201cMost 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 \u2014 or cut out even if there\u2019s no will \u2014 but the code defines these things,\u201d he says.<\/p>\n 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\u2019ll need to complete to properly close out the estate, including:<\/p>\n In some estate arrangements, probate can be avoided. These include:<\/p>\n The probate process can be lengthy and stressful (especially if there\u2019s no will involved) so many families choose to eliminate the need for probate with the creation of a trust.<\/p>\n A trust grants a designated \u201ctrustee\u201d 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.<\/p>\n \u201cIf you have a trust, the estate does not get probated at all,\u201d Rhyne notes. \u201cThe trust owns the property, so the property has already been transferred \u2014 therefore, there is nothing to be probated. The trustees own it.\u201d<\/p>\n Not only does a trust establish who owns the property and other assets prior to the death, it\u2019s also a way to save money, adds Padilla. You\u2019ll pay fees to establish a trust<\/a>, but the probate process is likely to cost even more \u2014 potentially as much as 7%<\/a> of the entire estate.<\/p>\n Probate can also be avoided when property is held jointly<\/a>. In these cases, the estate is owned by the other party right away, without the need for probate. While it\u2019s most common with married couples, property can be held jointly among other relatives or even friends.<\/p>\n \u201cIf the property is owned jointly, most states deem that when one owner dies, the other person owns the property,\u201d Rhyne says. \u201cSo, for example, if I die, my wife instantly owns our house. She doesn\u2019t 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\u2019s the only person who would have to sign it over to a buyer.\u201d<\/p>\n Once you\u2019ve got the estate settled and you\u2019re ready to sort and clean out the home, stay organized with this list of tips for tackling what\u2019s likely to be a big project.<\/p>\n 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.<\/p>\n 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.<\/p>\n You can rent a small residential dumpster for an average of $380 per week. A small dumpster<\/a> of 10 cubic yards, or 11 feet by 8 feet by 4 feet, holds 2 to 3 tons and is likely what you\u2019ll need for the average home cleanup.<\/p>\n Donate lightly used clothing, toys, and dishes. Recycle old magazines and take dated electronics to your local electronics recycling drop-off.<\/p>\n Items that don\u2019t have any market value but are still sentimental among the family (such a relative\u2019s 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 \u201cfamily estate sale\u201d and go round-robin picking up-for-grabs trinkets, artwork, and collectibles.<\/p>\n 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.<\/p>\n \u201cIn 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,\u201d he says.<\/p>\n 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\u2019t sure how to find probate real estate agents in your area,\u00a0 HomeLight would be happy to connect you<\/a> with a few qualified candidates.<\/p>\nWhy can\u2019t I clean out the house now?<\/h2>\n
<\/a>Is there anything I can do in the meantime?<\/h2>\n
\n <\/div>\n \n Get a Free Home Value Estimate <\/h3>\n
How to settle the estate<\/h2>\n
If there\u2019s a will<\/h3>\n
If there\u2019s not a will<\/h3>\n
Other tasks the executor may need to complete<\/h3>\n
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Exceptions to the probate process<\/h2>\n
Established trust<\/h3>\n
Joint-owned property<\/h3>\n
<\/a>Estate settled? Now, you can clean<\/h2>\n
Come up with a system<\/h3>\n
Determine what to toss, recycle, or donate<\/h3>\n
Discuss sentimental items<\/h3>\n
Hire an appraiser if necessary<\/h3>\n
Enlist the help of a real estate agent<\/h3>\n
Go through the right channels, and don\u2019t rush<\/h2>\n