Title of the House – Probate

Title of the House – Probate

My step father and my mother own a house. My step father passed away last year and the house is in probate. Can my mother sell the house?


There are lots of ways two people can own a house. See some of the planning tips discussing title to assets in other parts of this website. Each different title can present different issues that affect your answer. Taxes could be an issue and you provide no information on that (income tax and basis step up, is it a principal residence, estate or state inheritance or other taxes), etc.

So, you need to get a local lawyer familiar with probate in your state and a lawyer familiar with real estate law (perhaps two separate specialists). You may need, depending on the state, a filing made to assure the state that any tax will be paid (a tax clearance certificate) to sell the house. The answer may be simple, but a lot more information is necessary (and the rules will differ by state). If they owned the house, for example, joint tenants with rights of survivorship (tenants by the entirety) title to the house transfers to your mother by operation of law on his death. You might not need more than a death certificate to sell the house if there are no state tax filing requirements. On the other hand, if the house was owned tenants in common, your step father's share might pass to a trust under his will, other children, etc. Not so simple. Because you don't want to risk a problem with the title (ownership) of the property, and especially because the cost is likely to be negligible compared to the value of the house get the input of a real estate attorney in your area so it gets done right.

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