What Is Probate in Real Estate?

Probate in real estate is the court-supervised legal process that occurs after someone dies to validate the will, appoint an executor, settle debts, and transfer ownership of the deceased person’s property — including their home.

Probate: Simple Definition

Probate is the legal process that determines who inherits a property when a homeowner dies. The court reviews the will (if one exists), identifies heirs, ensures debts are paid, and authorizes the transfer or sale of the real estate.

When Does Real Estate Go Through Probate?

Real estate enters probate when:

  • The owner dies without a will (intestate).
  • The property is held in sole ownership — no survivorship rights.
  • The will directs the property to be sold or distributed.
  • The owner’s debts must be settled through estate assets.

Property may bypass probate when held in:

  • A trust
  • Joint tenancy with right of survivorship
  • Tenancy by the entirety (in applicable states)
  • Certain community property with survivorship arrangements

Most Common Steps in the Probate Process

  1. Filing a petition with the court to open probate.
  2. Validating the will (if one exists).
  3. Appointing an executor or personal representative.
  4. Identifying heirs and beneficiaries.
  5. Inventorying all estate assets, including real property.
  6. Paying debts, taxes, and expenses.
  7. Transferring ownership of the property to heirs or authorizing a sale.

Probate Sales: When the Home Must Be Sold

Sometimes the court requires the property to be sold during probate. This is known as a probate sale. A probate sale happens when:

  • The will instructs the home to be sold.
  • The estate needs cash to pay debts.
  • Heirs prefer to divide proceeds instead of co-owning the home.

Why Probate Matters in Real Estate

Probate affects real estate by:

  • Delaying transfer of ownership (often months).
  • Restricting the sale of the property without court approval.
  • Adding legal and administrative costs.
  • Determining who legally inherits the home.

In some cases, avoiding probate is possible through trusts or specific ownership forms such as joint tenancy or community property with survivorship rights.

How to Avoid Probate for Real Estate

Certain ownership structures and estate planning tools can prevent property from going through probate. Common ways to avoid probate include:

  • Revocable living trusts, which hold title to the property outside the probate process.
  • Joint tenancy with right of survivorship, where the surviving co-owner automatically inherits the home.
  • Community property with survivorship rights in applicable states.
  • A Transfer on Death (TOD) Deed , which names a beneficiary who inherits the property automatically upon the owner’s death.

These methods can simplify inheritance, reduce delays, and help heirs avoid court-supervised probate.

Selling a Home in Probate?

List your home on the MLS for a low flat fee and navigate probate with confidence.

View Flat Fee MLS Plans →