Do You Have to Open Probate to Sell Inherited Real Estate?

What Is Probate?

Probate is the legal procedure that proves, in court, that a deceased person's will is valid. The process consists of identifying and appraising the deceased's assets, paying debts from the estate, and distributing the remaining property to heirs.

How Long Does Probate Take in Tennessee?

While the answer varies, the probate process typically can take anywhere from six months to two years. Several factors can affect how long probate takes, including:  

• The state the decedent lived in 
• What the assets are
• If a creditor's claim is filed 

To start, the executor (the person appointed to carry out the wishes and instructions in the will) has 60 days to compile a list of assets and submit them to court. They're also responsible for notifying creditors and, if the decedent was in a nursing home, ensuring TennCare (Tennessee's Medicaid agency) isn't owed anything.

What Is a Creditor's Claim?

If the decedent owed a person or entity money, the latter could file what's called a creditor's claim in probate court. 

Every state has deadlines for filing a claim after the estate enters probate. In Tennessee, if probate is opened, creditors have 120 days from the date of the first publication or public notice of the decedent's death to file a claim. If probate hasn't been opened, and the creditor didn't receive a personal notice of the decedent's death, they have one year from the date of the death to bring a claim. 

Tennessee law states that real estate cannot be sold within 30 days of the decedent's passing. It's also recommended heirs wait until the period for creditor claims has passed to sell - ensuring all debts are paid.

What Happens to a House When the Owner Dies?

Because a house can't stay in the deceased person's name, ownership will switch according to their will or Tennessee's intestate succession laws. This transfer happens immediately at the deceased's passing - regardless of whether or not they have a will. 

What Happens to a House If the Owner Dies and There Is a Will?

If the deceased, also known as the decedent, had a will, the house will directly pass to the person named in the document. That said, a will acts like a real estate deed and must be probated to become public record. Once validated, the executor can transfer the property to the heir. 

If the property was held jointly, it automatically passes to the surviving tenant without needing to go through probate. For example, a married couple whose names are both on the deed.

What Happens to a House If the Owner Dies and There Is No Will?

In the absence of a will, the transfer of real estate follows Tennessee's intestate succession laws which are summarized in the following table:

	Inheritance Situation	Who Inherits the Property
1	Spouse but no children	Spouse inherits the entire estate
2	Spouse and children	Estate is evenly distributed among the surviving spouse and children. The spouse's share must be no less than 33% of the entire estate
3	Children but no spouse	Estate is split evenly among children
4	Parents but no spouse or children	Parents or parent inherit the entire estate
5	One parent and siblings	½ of the estate goes to the parent, while the other part is split evenly among siblings
6	No spouse, children, parents, or siblings	Entire estate is evenly divided among nieces and nephews
7	No spouse, children, parents, siblings, or nieces and nephews	Estate is evenly split between paternal and maternal grandparents
7	No spouse, children, parents, siblings, nieces and nephews, and grandparents	Estate is divided evenly among paternal and maternal uncles and aunts