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

Probate is the court-supervised process an estate goes through after someone passes away. It ensures any assets are distributed to the appropriate heirs. 

Without proper planning, an estate will likely be probated. That said, the process is avoidable under certain criteria. The question is, do you have to open probate to sell inherited real estate? 

Believe it or not, there is actually a way to sell inherited real estate without opening probate. While there are times when probate is inevitable, probate isn't always 100% necessary when selling inherited real estate. Learn more about what this means and how you could potentially avoid probate here.

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

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

The short answer is it depends. In many cases, it comes down to whether the decedent wanted probate or took steps to avoid it, like creating a living trust. 

However, according to Tennessee intestate laws, if the deceased passed without a will or the will was never probated, the heirs can sell the inherited property one year from the date of the decedent's death without opening probate. 

From there, selling inherited real estate is mostly the same as putting your home up for sale. You can hire an agent, do things yourself, or sell the house to a cash buyer. 

With Reliant Home Buyers of TN, you can sell your home for cash in a matter of days instead of months. While the final sale price depends on the situation, cash sales are ideal if you live out of state or are unable to care for another house.

Need Help Selling Inherited Property in the Greater Knoxville Area?

Not sure what to do when you inherit a house? From property taxes to multiple mortgages, holding on to inherited property can quickly become a financial burden. If you plan to sell, our Greater Knoxville home buyer can make you a cash offer for your home today! 

While we're not attorneys, we understand how emotionally draining selling an inherited house is and can help you decide your next steps. Call 865-345-2440 or fill out the online form for more information. 

Author Bio: Justin Treadwell is the owner and operator of Reliant Home Buyers of TN, a local business that pays cash for houses in any condition or price range! He is a Tennessee native and has bought and sold real estate in the Greater Knoxville area since 2003. Call 865-345-2440 for more information.


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