What Is Real Property
Real property is land and anything permanently attached to it, such as a house, building, fixtures, or improvements. If the deceased owned a home, rental property, or undeveloped land, that constitutes their real property and will likely be part of their estate.
Real property typically represents a significant portion of an estate's total value. The National Association of Realtors reports that the median home price in the United States is around $400,000, making the family home often the largest asset you'll need to address during the settling of an estate. This matters because real property doesn't transfer as quickly as other assets, and handling it requires specific legal steps that vary by state.
Real Property During Grief
Grieving people often face decisions about the family home while still in early stages of loss. Grief specialists recognize that major decisions about property typically shouldn't be made during acute grief, which can last 3 to 12 months following a loss. If you're in this phase, consider delaying decisions about selling, keeping, or renting the property whenever possible.
Complicated grief, which affects approximately 7 to 10 percent of bereaved people, can make estate tasks feel overwhelming. If you find yourself stuck on decisions about real property or unable to address the task, bereavement counseling or support groups can help you process the loss while organizing next steps. Many hospices and grief centers offer free or low-cost services specifically designed to help families navigate estate matters alongside emotional recovery.
What Happens to Real Property
- Probate involvement: Real property must pass through probate in most cases, unless it was held as joint tenancy with survivorship rights or placed in a trust. This process can take 6 to 18 months depending on the state and estate complexity.
- Title transfer: Legal ownership of the property transfers to the heir or beneficiary only after probate concludes and the court issues a deed. Until then, the property remains part of the estate.
- Out-of-state property: If the deceased owned property in another state, ancillary probate is required in that state. This adds significant time and legal fees, typically ranging from $1,000 to $5,000 per state.
- Taxes and liens: Real property is subject to property taxes, which continue to accrue during probate. Mortgage debt, property liens, or home equity loans must be paid before transfer.
- Maintenance costs: Until the property is settled, someone must pay for insurance, utilities, maintenance, and property taxes. These costs come from the estate and reduce its value.
How Real Property Differs From Personal Property
Tangible personal property such as jewelry, vehicles, furniture, or bank accounts transfers differently and more quickly than real property. Personal items can often be distributed to family members outside of probate, while real property requires formal legal title transfer. The distinction matters for timing and cost: handling personal property can usually be completed in weeks, while real property often takes months.
A devise is a legal term for property, typically real property, left to someone in a will. If the deceased left specific instructions about the family home in their will, those instructions become binding during probate.
What You Need to Do
- Locate the original deed or title documents. These are essential for the probate process and should be filed with the executor's attorney.
- Have the property professionally appraised within 90 days of death. This establishes its fair market value for tax purposes and creditor claims.
- Arrange homeowner's insurance if not already in place. Gaps in coverage can create liability issues during probate.
- Consult an estate attorney about ancillary probate if the deceased owned property outside the state where they lived. Filing delays can be costly.
- Set up a separate account for property expenses if you're serving as executor or administrator. Keep receipts for all maintenance, taxes, and utilities.
Common Questions
- Can I stay in the house during probate? In most cases, yes, if you're a beneficiary or the spouse of the deceased. However, you're responsible for mortgage payments, property taxes, insurance, and maintenance during this period. Check with the estate attorney about your specific rights and responsibilities.
- How long before I can sell the property? You typically cannot sell until the probate court issues a deed transferring legal title to you or the estate. In most states, this takes 6 to 12 months after the executor files the petition. Some states allow sales during probate with court approval, which can expedite the process.
- What if there's a mortgage on the property? The mortgage debt must be paid from estate assets before the property transfers to heirs. If the estate lacks sufficient liquid assets, the property may need to be sold to cover the debt. Discuss options with the executor and attorney before making decisions.
Related Concepts
Tangible Personal Property refers to movable assets like vehicles, jewelry, and household items, which transfer outside of probate more easily than real property. Devise is the legal term for real property left to someone in a will. Ancillary Probate is the additional probate process required when the deceased owned property in states other than where they lived.