Is Probate Required When There is a Just a House?

This probate question was posted today on a listserv I belong to.  It is a good question and one that is asked by many people.

"If a person dies without a will and has only her adult children as survivors, must those children pay the parent's creditors?  The estate has not been probated because the only asset was the mother's house, which all of the children agreed should go to one sibling who lived with their mother in the house and helped take care of things. Does that child now have to pay off the mother's credit cards?  Also, are they required to probate the estate?"

The answer is straightforward. Yes, probate must be opened.

If the house is in the name of the mother who died then probate must be opened. None of her children can transfer title of an asset that they do not own. Probate is the legal process of determining the chain of title for an asset belonging to someone who has died.

And yes, the creditors need to be paid. This is not an insolvent estate. The house is ostensibly worth hundreds of thousands of dollars in California. There should be enough equity even with a mortgage on the property to pay off the creditors. It may mean selling the home though.

Probate may be opened by any of the children. If a child doesn't open probate in a timely fashion, a creditor may open probate themselves.

If the kids want to give their share of the house to one sibling, they can either through disclaimer or assignment. You should consult with an attorney to determine how to handle this as there are many tax implications and other implications involved in this kind of decision making to give up an inheritance.

One way to avoid probate in this case was if the mother had a Living Trust. It always comes back to a Living Trust sometimes. In California, it is often the best thing to do when it involves your real estate. Talk to your estate planning attorney about these kinds of things.

Comments

[terry woody]

Is it true, when you become the Executor of an Estate everything that person willed to someone else must go in the Executors name first?

[Terry]

When a parent dies and has a will, is it true that the Executor of the Estate must first put everything in their name before giving the granted parties their share? This is for the state of Delaware.