Selling a House in Probate

When a person dies, there is a legal process for settling their estate, including paying off outstanding debts and distributing assets to beneficiaries. This process is called probate, and it’s essential to understand if you’ve recently inherited property or stand to do so in the future.

Selling a house in probate is possible — and often a good idea — but each state has its own probate laws. Real estate, in particular, is often subject to special rules that limit when and how it can be sold.

Learn what probate is, how it works, how long it takes, and what your options are for selling a house before, during, or after probate.

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What is probate?

“Probate means to prove that somebody had a valid will when they died,” explains Mitch Mitchell, an estate planning attorney at Trust & Will.

Once that’s been proven, a probate court appoints an executor or administrator to determine what assets the deceased person has left behind and who will inherit them.

During probate, the court ensures that the deceased’s debts are paid and assets are distributed. The extent to which the court is involved will depend on the state and the terms of the will. In many cases, an executor will be named in the will who will be responsible for managing the estate and carrying out the directions of the will.

Probate is usually required when a person dies with property that is solely in their name, especially real estate, bank accounts, and investments without designated beneficiaries. Contrary to popular belief, probate is often still required when a deceased person has a will, but only to establish the existence and validity of the will, after which the executor largely manages the process.

A few situations can avoid probate entirely:

• Small estates (thresholds vary by state) may qualify for summary administration.
• Property held in a living trust continues to belong to the trust.
• Jointly owned real estate passes to the surviving owner.
• Designated beneficiaries, such as for retirement accounts or life insurance policies, may take priority.

How probate works

Probate is a structured process, but it can get complicated and drag out depending on the complexity of the estate and if disputes arise between the beneficiaries. While the process will vary from state to state, generally it follows the same pattern.

1. File the petition with the probate court

Filing the original (typically in the county where the deceased last lived) and petitioning the court for probate — i.e., asking the court to validate the will and appoint an executor — officially begins the probate process. When a person dies intestate (without a will), the petition will ask the court to appoint an administrator instead of an executor.

If the petition is accepted, the court will issue either Letters Testamentary or Letters of Administration (for executors or administrators, respectively). These documents give the executor or administrator the legal authority to act on behalf of the estate.

2. Notify heirs, beneficiaries, and creditors

The executor or administrator must notify anyone with an interest in the estate, either by contacting interested parties directly or by publishing legal notices in the local newspaper. Typically, the notice includes a deadline for creditors to file any claims they may have against the estate.

Each state has its own laws for notification requirements and time frames.

3. Inventory the estate’s assets

The executor must identify, locate, and value all assets, which are often listed in the will, including any real estate. In practical terms, this step usually involves obtaining a professional appraisal to establish the home's market value.

The inventory of assets and their value need to be filed with the court by a certain deadline, usually within 30–90 days of the executor being appointed, depending on the state.

4. Pay debts, taxes, and court costs

The executor or administrator must pay debts and taxes owed by the estate, along with any court costs, before distributing assets to the beneficiaries. During this step, the representative will also file the deceased’s final income tax returns and estate tax returns (if applicable).

Each state has a different order in which creditors are entitled to receive estate proceeds. Some estates may not be large enough to cover all debts, in which case certain creditors will need to be prioritized.

5. Distribute remaining assets

Once all debts and taxes are paid, the executor or administrator can begin distributing any assets to the beneficiaries according to the will or the relevant state intestacy laws.

For selling a house in probate, this may involve selling the house and distributing the proceeds to the beneficiaries or having one or more beneficiaries buy out the other beneficiary’s share of the house.

How long does probate take?

Probate often takes around 3–6 months for simple estates or 6–12 months for complex estates.

A clear and valid will can help speed up the process, especially if the beneficiaries have already agreed on how assets will be distributed. A simple estate with few debts or where financial records are well organized can also help move probate along.

Probate tends to get slowed down by disputes with beneficiaries or creditors, or with estates involving complex assets or tax issues. These cases can take years to resolve.[2]

Unfortunately, selling inherited real estate to pay off an estate's debts is one of the leading causes of a slow probate process, especially if the property is difficult to sell or has title issues. Obtaining court approval to sell an inherited house can take an extra 30 to 90 days.

Can I sell a house before probate?

You usually can’t sell a house before probate when that house was solely owned by the deceased person. However, there are two situations that allow you to avoid probate altogether:

• Property held in a living trust. Travis Christiansen, an attorney with Boyack Christiansen Legal Solutions, says, “One of the great advantages of doing trust-based estate planning is you don't have to do probate, so long as the real estate is titled and owned by the trust.” As a result, the trustee can sell or transfer the property in accordance with the terms of the trust and without having to get court approval.
• Joint ownership with right of survivorship. Property that is owned jointly with rights of survivorship — which is usually the case with spouses — automatically passes to the surviving spouse. Once the surviving spouse obtains a death certificate and the title record is updated, they are free to sell the property without going through probate. However, if the title was solely in the deceased’s name, probate must begin before the house can be sold.

Note that even when a will expresses the deceased person’s intentions, probate is usually still necessary to validate the will before the property can be transferred or sold.

Selling a house during probate

Selling a house in probate is possible with court approval.

Selling during probate can be a good idea to:

• Avoid deterioration, ongoing maintenance, and utility costs that could decrease the value of the estate.
• Provide the estate with a significant amount of cash to pay its debts, taxes, and other costs. Without this cash, beneficiaries may be forced to cover these expenses themselves.

However, selling a house in probate tends to be slower and requires more documentation than a regular real estate sale. Plus, court oversight can mean limited negotiating flexibility, or it may be harder to respond quickly to a rapidly changing housing market. Court-mandated sale conditions in some states can also complicate the transaction.

While the specific process for selling a house in probate varies by state, it typically looks like this:

1. Petition the court
2. Appraise the property
3. Follow court-mandated conditions
4. Distribute the proceeds

A court-mandated condition can look like this: California has an “overbidding” process where the court confirms first offers, and then bidders can submit higher offers in a later court hearing.[3] This process ensures the property is sold for the highest price, which benefits the beneficiaries, but it can also make the sale longer and more complex.

Selling a house after probate

Selling a house after probate is the same as a normal real estate transaction.

Waiting for probate to finish gives the seller more flexibility to negotiate with buyers and respond to rapidly changing market conditions, without the added complexity of court oversight.

However, waiting for probate to close means ongoing maintenance costs on the property. Because liquidity is locked up in the property, the beneficiaries may have to pay for these costs out of pocket.

Once the court process finishes and issues final orders, the beneficiaries will receive a clear title to the inherited property. This means they have full ownership of the property and are free to sell it just like any other property without court oversight.

Tax considerations when selling an inherited house

Inherited properties often benefit from a “stepped up” tax basis, which means that for capital gains taxes, the property’s tax basis is calculated from the date of the owner’s death.

For example, you inherited a $500,000 property in 2024 that was bought for $300,000 in 1999. If you sell the property six months after probate closes for $550,000, you’ll owe capital gains tax on only the $50,000 profit you made — not the $250,000 increase in home value since 1999.

Because of this stepped-up basis, it can often be in your best interests to sell a house soon after inheriting it. That way, you can avoid paying most or all capital gains tax. However, depending on market conditions and your own financial goals, you may be better off waiting to sell.