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00:00 What is probate?
01:42 What happens to real estate when someone dies?
02:41 What happens when some dies with a will?
03:46 Do all the heirs have to agree to sell a home?
05:22 Can you live in a home during the probate process?
06:55 What if a probate house has tenants?


What exactly is Probate?

Probate is the process of verifying a will, or administering the estate if there is no will. Not all estates have to go through the probate process. The main reason an estate goes through probate is because proper plans were not put in place ahead of time. The probate process can easily be avoided by placing assets in a trust, or naming beneficiaries on specific assets. When there is as joint-owner of property, or a beneficiary listed, it will automatically go to that person upon death without probate. If property is held within a trust, the terms of the trust will control the distribution outside of probate as well.

Do all heirs have to agree to sell property?

The short answer is “no.” It is not an easy process though. If a person dies without a will, the property transfers to the heirs, and all of the heirs must agree to the sale. If all of the heirs are not in agreement to sell, an heir can file a Partition Suit in the jurisdiction in which the property is located. Assuming the property cannot be fairly subdivided, a court will enter an order providing for the sale of the property.

What Happens To Real Estate When Someone Dies?

What happens to real estate and other property after the owner dies depends upon a number of factors including, the presence or lack-thereof of a will.

Without a Will

If someone dies without a will (intestate), then title to the property transfers to the heirs. A list of heirs will have to be provided, identifying family members, who would be entitled to inherit the state. This list must include names, addresses, ages, and relation to the deceased. A court administrator will be assigned to close the estate, however this person does not have the automatic authority to sell real estate under Virginia law. Since all of their heirs own the real estate, all heirs must join in selling the property. This includes signing all contracts, deeds, and other documents incidental to the transaction.

With a Will

If someone dies with a will (testate), they may expressly direct the Executor to sell the real property. If this is the case, the Executor can sell the property by direction of the will, without the approval of, or involving any beneficiaries. The will could state however, that the Executor has the Power of Sale. While this sounds empowering, it really is not. An Executor with Power of Sale often cannot sell a property without the approval of all beneficiaries.


Can You Live In A House During Probate?

Generally, if you already live in the house – as your home or residence at the time when the decedent died – you may continue to live in it pending the outcome of probate proceedings. Otherwise, the house is the property of the estate and you would have to get permission from the executor/administrator of the estate in order to move into it.
As a survivor or heir domiciled in the same house at the time of the decedent’s death, if the will is admitted to probate, under typical circumstances the ownership of the house passed to you by operation of law as of the decedent's date of death.

There is also no law that mandates that a property that is going through probate cannot be lived in. In fact, many state representatives like to have someone live in the property chiefly to:
To receive rental income.
Ensure that the property is properly maintained.

In the event that the house is previously established rental property, the lease signed by the tenants and now deceased landlord should typically persist. Where it expires while the home is going through Probate, the executor then will decide whether to continue the rental status of the property, subject to the best interests of the estate.

Matt Walsh
[email protected]
(757) 755-5587
Notary Public

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