Q: My grandparents on my mom’s side are leaving me their house in their will after they both pass away, will I be able to sell it right away?
A: No, if a property left to you through a bequest in a last will and testament, the will must be probated before the property passes to you. Depending on where you live and what other family members are involved, probate may be a lengthy process and create delays in your ability to sell.
There are several ways of owning real property. If the deed to a property is held by a married couple, the ownership is tenancy by the entirety. The legal effect of tenancy by the entirety is that the property passes to the surviving spouse, without any formal transfer taking place. Without further action, property will pass through the probate estate of the surviving spouse since the asset is now held in their sole name.
It is a common misconception that having a well drafted will avoids the process of probate. To the contrary, all wills must pass through probate if any assets are to be distributed according to the terms of the will. Any assets passing through the will are “probate assets.” Probate assets are those that are in the sole name of the deceased and do not name a beneficiary. Any assets with a beneficiary pass to the designated beneficiary, thereby trumping the will and are “non-probate assets.” The probate process includes notifying the next of kin even if they are not in the will. This is because they would have inherited had there not been a will.
For example, if your mom, aunts, or uncles are living at the death of your surviving grandparent, as the immediate next of kin, they must be provided a copy of the will and an opportunity to come to court and contest the will. If your grandparents do not have any living children, your siblings and first cousins would be afforded this right. Probate is complete after the Surrogate’s Court ensures that the proper individuals were notified and did not contest within the allotted period of time.
The result of the probate process is that letters testamentary issue to the executor, who can then sign a deed transferring the property to you. At this point, you can move forward with selling the property. The length of time this process can take varies from county to county and based upon these other family members’ cooperation.
Many individuals engage in estate planning techniques to avoid the probate process. Creating a trust during life and executing a new deed transferring the property to the trust accomplishes this goal. Whether the trust is revocable or irrevocable will depend on your personal circumstances. In some cases, an irrevocable trust may be advisable to protect assets from the costs of long-term care. In other cases, probate avoidance is the only goal, and a revocable trust is sufficient. It is important to seek the advice of a competent trusts and estates attorney to advise you on the best options for you and your family.