In this article, I will explain everything you need to know about selling a house without probate. We will also look at how probate works, how you can sell a house before and without probate and how Affidavit of Heirship, Small Estate Affidavit and Judicial Determination of Heirship work.

But, first thing’s first.

What is a probate?

First, let’s look at what a probate sale means.

The dictionary identifies several meanings of the word probate, however, in our case, it’s a method of administrating a property after you die.

Probate is used to transfer your property in an orderly matter.

Is selling a house without probate possible?

Yes. Your will determines the transfer of your estate during a probate. If you don’t have a will, the transfer is decided by the laws of your state – and that’s when you are able to avoid probate. In this article, I define 7 ways you can avoid probate and sell your house fast.

How does a probate work?

N. Brian Caverly and Jordan S. Simon defined four processes to a probate:

• Swearing in your personal representative
• The public and heirs are notified you are dead
• Your property goes through inventory
• Your estate is distributed

So how can I get away with selling a house without probate?

Selling a house without probate is a lot easier than you think.

A real estate agent might often tell you that your house cannot be sold unless it’s probated. They are WRONG.

Selling a house without probate is possible and it is, in fact, very common.

SFgate identifies four ways of selling a house without probate:

Trusts

If you’re lucky enough and the decedent placed his property in a living trust, you will avoid probate. If you are named as a trustee, you are able to sell the house without probate court approval.

Jointly Held Real Estate

In California, joint tenancy is free of probate. If you are the executor and the co-owner of the property, you are also free of probate and have full authority after solo ownership.

Independent Administration of Estates Act

Independent Administration of Estates Act doesn’t really avoid probate, at least not completely. Instead, you are able to avoid probate under specific circumstances. 90% rule applies – as the executor, you can sell the house for at least 90% of its value. However, you must give notice to those interested in the property and get an approval from the court. This is bypassed if the deceased clearly states that you are solely responsible for the property after his or hers death.

Summary Probate

Properties of a smaller or limited value can be appraised and filed for a smaller affidavit instead. Depending on the state, these values may differ.

Do you live in Texas?

Here are three more ways you can sell a house without probate in Texas.

Affidavit of Heirship, Small Estate Affidavit and Judicial Determination of Heirship

Affidavit of Heirship

You can use Affidavit of Heirship when your loved one died and didn’t leave a will, however, you are still left with a property.

In the case of no will, the probate is not needed. Just file the Affidavit of Heirship and sell your house FAST.

The Affidavit of Heirship requires two witnesses who must swear under Oath. The two witnesses must:

• State they knew the deceased
• The date and place of death of the deceased
• The relations to the deceased
• A statement of the deceased’s debts
• A statement that they will not gain financially from the property.

Small Estate Affidavit

The Small Estate Affidavit is filed in the same country in which the Decedent resided during the time of their death.

Along with the same information as was stated in the Affidavit of Heirship, the witness must also provide signatures of all heirs and two objective witnesses.

Please note that this option will only avoid probate if the property value is less than $50,000.

Judicial Determination of Heirship

If the deceased hasn’t left a will, Judicial Determination of Heirship can also be applied. In this case, the court acts in charge and determines the heirs, which can often resolve in a distribution of the property among these heirs.

Out of the three options, the Judicial Determination of Heirship is the most time-consuming and the most expensive. You will have to file an application with the Probate Court, the Court will appoint an attorney who will investigate the identity of the heirs and schedule a hearing once the procedure was done.

When someone dies without leaving a Will, the Court can conduct a formal Determination of Heirship. During this process, the Court will make a formal declaration as to the identity of the Decedent’s heirs. Pursuant to that declaration of the heirs, the Decedent’s property can be divided and distributed among the heirs.

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We buy houses in the San Antonio area. If you need to sell your San Antonio area house fast and would like to get a no-obligation cash offer, call us now at 210-596-9669. Whether you decide to sell your house to us or not, Matt Buys Houses TX would like to help answer questions you might have about the process.
 

The information presented in this article is for educational purposes only and should not be considered legal, financial, or as any other type of advice.

Wondering what is a Texas affidavit of heirship? In this article, I’ll explain what it means and how it’s used to sell an inherited house when a will does not exist. I will also provide you with several affidavit samples you can use to draft your form.

What is a Texas affidavit of heirship?

A declaration and an identifier of the heirs of a deceased person. As simple as that. With an affidavit form, you are able to claim the ownership of a property as well as vehicles – in fact, it works for any personal property, regardless of its size or functions. Texas affidavit of heirship estates code  form is your ticket to selling a house FAST, without a will. Freedom is waiting for you!

When do you use it?

Let’s say a family member or your loved one has passed away and left no will. You think a personal property belongs to you, but how do you prove it? Texas affidavit of heirship estates code allows you to prove ownership without having to go through probate, as long as you are able to distribute the personal property between other possible heirs if such exist.

Here’s how the state of Texas deals with affidavit cases and what the witness must know before filling the form:

• The deceased person’s name and his or hers date of death.
• Family names and names of all heirs.
• Any outstanding debts of the deceased.

What goes in the affidavit of heirship form?

Here are some things you must include in your form. These things might be different depending on each state – please make sure you visit sites such as LegalMatch to get full information on your state’s laws.

SupremeCourtBC identifies 7 parts to the form:

1. Style of proceeding
2. Deponent’s statement (“deponent’ is the person making the affidavit)
3. Knowledge statement
4. Body of the affidavit (this is the most important part of the affidavit)
5. The affidavit ending
6. Exhibits
7. Backing sheet

Yes, but what do they mean?

Let’s look at them closely.

Style of Proceedings

Style of proceedings is located on the first page of all legal documents. The first thing you absolutely have to do is state the business as well as the file number and court registry name.

The top right corner must include the affidavit number, deponent’s name and the date. You must also make sure to clearly swear under oath that you are telling the truth.

Deponent’s Statement

Deponent’s statement includes your name, full residence, occupancy (those who are retired or not working at the moment, must state that in the form as well) and your oath.

Knowledge Statement

As much as the term might sound confusing, the knowledge statement simply provides the judge of confirmation – you know what you’re talking about and acknowledge all information in this form. You must also state your business – are you the defendant, respondent, petitioner or plaintiff?

Body and ending of the affidavit

The body is the most important part of the entire form, however, it should be kept simple, organized and short. Your judge will be as equally impressed if you are able to express your needs in the simplest way and keeping it simple also means less work for you.

To keep your affidavit organized, stick to a chronological order – the judge will clearly see the timeline of events and will be able to make the decision easily.  Make sure you use a person’s name instead of using personal pronouns.

And, of course, keep it short. Having a long affidavit means the judge will take longer to process all necessary information – edit it down as much as possible, but still ensure everything needed has been said.

MY TIP: Speak to your lawyer. They will tell you what you should add in and give you sound personal advice that will work for you.

Exhibits

This is where your letters and important documents go. Your exhibits must be alphabetised instead of numbered – exhibit 1 becomes exhibit A, exhibit 2 becomes exhibit B, and so on. These letters are best to be put in the middle of the page. You must also include an exhibit stamp, which you can get at most law firms – do this after you see your lawyer.

Backing Sheet

Here’s what you must include in the backing sheet: the style of proceedings, the description of the document and your name, your address, email address, your phone number and your fax number, if applicable. Please note that a backing sheet is optional, however, it will help the court file your document and not lose it.

Do you have some samples of the affidavit of heirship form?

To make sure your form is effective, please refer to the steps above – I can guarantee these tips will help you when you’re dealing with selling an inherited house without an existing will.

Here is a sample extract, fully available on FormsBirds:

“I,   (INSERT NAME)  of lawful age, residing at   (INSERT RESIDENCY) , being first duly sworn, upon oath deposes and says: That affiant was personally well acquainted with the above-named decedent, during his (or her) lifetime, having known him (or her) for years, and that affiant bears the following relationship to said decedent, to-wit..”

There are different ways to write your form. Here is another sample extract, fully available on Vernon E. Faulconer, Inc.

(YOUR FULL NAME) , whose address is (INSERT RESIDENCY) hereinafter referred to as “Affiant,” being of lawful age and being duly sworn, upon oath deposes and says that (s)he was well acquainted with  (THE NAME OF THE DECEASED), hereinafter referred to as “the Decedent,” and that the answers and statements given in the following questionnaire are based upon (YOUR FULL NAME) personal knowledge and are true and correct:

Depending on where you live, Texas affidavit of heirship might require a waiting period, which can sometimes take up to a year after the death of your loved one. Please make sure you fully speak to your lawyer who can help you figure out what the laws of your Texas affidavit of heirship is.
 

The information presented in this article is for educational purposes only and should not be considered legal, financial, or as any other type of advice.

Selling a House Before Probate

Many residents of Texas find themselves looking for information about selling a house before probate. This is either because they have inherited a house through a will or have been named as executor in this document.

This is a situation that raises the need to find answers to several important questions. One of those important questions is “can you sell a house before probate is granted?”

Can You Sell an Inherited Property Before Probate?

Individuals who ended up with an inherited home often can’t or don’t want to keep it. It could be their parent’s home where both parents are now deceased. One option is to put the house on the market but the question is, “can you sell an inherited property before probate?”

If a will exists chances are a family member who is close to the deceased is aware of this important document. It may be that a particular person is named as the executor in the will. The executor has the duty and obligation to see that the last wishes as outlined in the will are fully carried out. If a property is involved in the estate, such as a house, this most likely will have to go through a probate process.

Individuals who have inherited a house may not realize that it has to go through a probate process. They may attempt to put the house on the market for sale. If they use a Realtor to attend to this, an experienced agent will know that the house must go through the “selling a house before probate” process. This is in order for a sale to be legal.

The probate laws are in place to ensure that the wishes of the will are carried out as intended. This is the main reason why selling a house before probate is not allowed in many states.

Luckily, in Texas there are some controlled exceptions to this. There is an alternative to going through the standard probate procedure. This is using a process called “Muniment of Title”. This is applicable when a will was left but there were no debts secured by real property. This alternative process is done by validating the will in a local county court. Once this court has approved the validation, property titles can be transferred to the beneficiaries.

There is also an alternative that should be looked at in Texas. This is for those who are looking at selling a house before probate. This is called Affidavit of Heirship. This can be utilized if the property in the estate only amounted to real property, i.e., a house or houses.

With this process, the property titles are transferred to the heirs. It involves two individuals who have nothing to gain from the estate sign the affidavit. Once this is done this document must then be filed with the deed record department in the local county where the house is located.

Can You Sell A House Going Through Probate?

The next question that often is raised is can you sell a house that is already going through probate?

It may have been discovered that selling a house before probate is not allowed in many states. It is important to really know the laws of the state in which the house resides.

In Texas for example, the answer to the question of whether you can sell a house going through probate is yes. There are specific steps that must be taken in order for the sale to be legitimate.

Getting a property appraisal

The property has to be appraised by an independent certified appraiser. Often an experienced realtor in probate sales will be able to recommend one.

Getting the petition

For the probate petition, it requires some information to be filled in. This applies to both selling a house before probate and selling one during probate. This includes all the details that pertain to the proposed sale. You may also have to outline the method in which the home will be sold. Once completed properly and submitted to the courts you then have to wait for court approval. A sale before this petition will not be considered valid.

This answers the question can you sell a house before probate is granted. It also shows that when it comes to Texas like the other states there are specific rules that must be followed.

Putting the house on the market

Potential buyers must be told that a sale can only be finalized after court confirmation.

Court Confirmation

Buyers will have to obtain confirmation of the sale from the court handling the probate case.

Local Newspaper advertisement

The public must be informed about the sale that has taken place during the probate period. This is done by running an ad about this in the local newspaper.

Can An Executor Sell A House Before Probate?

Individuals who become an executor  may find different types of property that need to be dealt with.

They first have to understand what their role as executor is.

Being an executor doesn’t mean this individual inherits any of the property. Sometimes an executor is named by the deceased. At other times may be appointed by the courts.

In most cases, probate is needed. If so then the executor or executrix must attend to this either doing it himself or retaining a lawyer to do it.

One of the questions raised by an individual with this responsibility is, “can an executor sell a house before probate?”

It may be that the inheritors of the will want the sale of the house done quickly so they can receive their share of the sale that was allotted to them through the wishes of the will.

Throughout most states, the probate rules and regulations are pretty much the same. There are some differences that do exist in some of the states about selling a house before probate.

Texas for example, is considered to have easier rules to adhere to when it comes to probating.

In Texas, the will can direct the executor to go after independent administration. This makes the process much easier. It gives more freedom to the executor outside of the control of the court.  If this is granted the executor does not have to ask permission from the court to sell the house named in the will.

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If you need to sell your San Antonio area house fast and would like to get a no-obligation cash offer, call us now at 210-596-9669. Whether you decide to sell your house to us or not, we would like to help answer questions you might have about the process.

 

The information presented in this article is for educational purposes only and should not be considered legal, financial, or as any other type of advice.