Definition of "Probate"

Donna Gentle real estate agent

Written by

Donna Gentleelite badge icon

Berkshire Hathaway HomeServices

Simply put, probate is a legal proceeding whereby the will of a deceased is tested for validity.

The definition of probate is not known to most Americans. According to a Gallup survey, almost 60% of Americans did not have a will in 2016. The situation didn’t change much in 2017 when only 42% of Americans said they had a form of estate planning like a will or a living trust. To die without a will means to die intestate. There are intestacy laws in every state which dictate how your estate is dealt with after your death.  

When no will is left, the estate is identified and distributed during a probate process. This process is overseen by a probate court. An estate administrator will have to identify the heirs, which is not always easy. The next step is to cover the liabilities and eventually, share the remaining estate between the heirs of the deceased. Most of the times, during probate, properties have to be sold to cover a debt. Real estate sales during probate have a special procedure and might turn out to be a bargain for house flippers, but such purchases are riskier.

According to the definition of probate, if a person dies with a will, this legal process is the only way to prove its validity. The only way to avoid this process is to establish a living trust. However, probate is not a calamity and parts of one’s estate don’t even go through it. For example, life insurance or retirement plan proceeds pass directly to the beneficiary you chose. The same happens to bank and brokerage accounts held jointly with right of survivorship.

A property belonging to a deceased cannot be sold before probate. It can only be sold during probate, by the executor, who usually goes the traditional route up to a point, then turns into a real estate auction, if more buyers turn up. Selling a real estate property after estate administration had completed could be extremely difficult, especially if there are more beneficiaries who have to agree on the transaction price. However, there are probate attorneys who can handle any situation. After all, probate is supposed to make life easier for those who remain behind.

image of a real estate dictionary page

Have a question or comment?

We're here to help.

*** Your email address will remain confidential.
 

 

Popular Real Estate Terms

Limited partnership in which limited partners rely on the general partner to choose specific properties after the funds are available. ...

Rate of return that is necessary to maintain market value of a real estate project. The cost of capital is used for project evaluation purposes. Under the net present value method, the cost ...

See common law. ...

Many homebuyers or real estate investors only think of mortgages when it comes to financial aid in real estate purchasing. Lately, with the increasing desire of homebuyers to not be ...

Rule within the Internal Revenue Code applicable to capital gains from selling real estate that has been depreciated for tax purposes. Most buildings must be depreciated using the ...

(1) Reconciling the records to show agreement. (2) Agreement of the records to physical amounts. ...

The broad use of credit to purchase a security. ...

A flexible price that may be adjusted. A resolved situation between two or people or parties through discussions in which common interests are modified. For example, real estate ...

Net return rate earned on an equity investment in real estate after deducing any interest costs and taxes. ...

Popular Real Estate Questions