How to Buy and Sell Probate Property

Key takeaways

• Probate property must be sold through court supervision to settle a deceased person's estate, often being sold by motivated sellers at below-market rates.
• Buyers benefit from reduced competition, strong investment potential, and motivated sellers who need to liquidate assets quickly.
• Legal requirements vary by state, with some requiring court approval for sales while others allow executors to sell directly with proper authority.

What is probate property?

Probate property is an asset or assets that are left by a deceased person and that must pass through probate court. This includes assets that are either distributed by a will or left by a person who has died intestate (without a will). Real estate is only one example of probate assets—any asset from the estate can be considered probate property, including items such as jewelry, stocks, cars, or collectibles.

Probate property is often sold when there is not enough cash to pay the debts of the estate. For example, if the deceased left a credit card debt of $20,000 and cash totaling $2,000, the estate will need to find another way to pay these debts.

Oftentimes, a house is a significant source of equity. In this example, selling the deceased’s house would likely produce enough cash to pay off the remaining credit card debt, with the remainder staying with the estate and eventually being distributed according to the last will or intestacy laws.

Examples of probate property

When someone dies, not everything they owned goes through probate. But certain types of property usually become part of the probate estate:

• Probate real estate refers to real property that must be handled through the legal probate process, including residential homes, commercial buildings, vacant land, or investment properties.
• Vehicles such as cars, trucks, or boats titled only in the deceased person's name often go through probate unless there's a transfer-on-death (TOD) designation.
• Bank accounts without a named beneficiary or joint owner are considered probate property and must be managed by the estate.
• Personal belongings like jewelry, furniture, art, or collectibles typically go through probate if they aren't gifted in a trust or will with clear instructions.

How the probate real estate process works

Unlike non-probate assets, where owners have full control over timing and pricing decisions, probate sales involve multiple parties including executors, administrators, heirs, and often the court itself. 

While there are many types of probate property, real estate is the most common type. Selling a house in probate involves multiple steps and parties, each with specific roles and responsibilities in ensuring proper probate estate settlement.

1. Probate case opening and appointment

The probate process begins when someone files a petition with the probate court, typically within 30–60 days of the person's death. Once the process begins, probate real estate can be sold by:

• The executor of the estate (the person named in the will to manage the business of distributing and wrapping up the probate estate)
• The administrator of the estate (the person appointed by the court to manage the estate when the deceased dies intestate and heirs are seeking to have the estate administered)
• The court, in intestate situations where no heirs are seeking administration

The personal representative receives legal documents called "letters testamentary" or "letters of administration" that grant them authority to act on behalf of the estate.

2. Asset identification and valuation

Administrator and executor responsibilities include identifying all estate assets, including real estate, and obtaining professional appraisals to determine their value. For real estate, this typically involves hiring licensed appraisers who provide formal valuations that the court will accept. These appraisals establish the baseline value for potential probate sales and help determine whether selling the property is necessary to settle estate debts.

3. Creditor notification and claims period

State law requires the personal representative to notify creditors of the probate proceedings and provide a specific time period (usually 3–6 months) for creditors to file claims against the estate. During this period, the executor must determine which debts are valid and whether estate assets, including real estate, need to be sold to pay these obligations.

4. Court approval and listing authorization

In many states, the executor must obtain court approval before listing real estate for sale. This involves filing a petition with the court explaining why the sale is necessary and providing the property appraisal. Some states allow executors to sell property without court approval if the will specifically grants this authority, while others require court supervision of all real estate transactions.

5. Marketing and sale process

Once authorized to sell, the executor can list the property with a real estate agent or market it independently. The marketing process for probate property often emphasizes the need for quick sale and may attract investors and cash buyers. Depending on state requirements, the sale may need to be conducted as an auction or through traditional listing methods.

6. Offer acceptance and court confirmation

When the executor receives an acceptable offer, the process varies by state. Some jurisdictions require court confirmation of the sale, which involves a hearing where the judge reviews the terms and may allow other parties to submit higher bids. Other states allow executors to accept offers directly without court involvement, streamlining the process significantly.

7. Closing and proceeds distribution

After court approval (if required), the sale proceeds to closing like any real estate transaction. The proceeds are used first to pay estate debts, administrative expenses, and any real estate commissions or closing costs. Remaining funds are distributed to heirs according to the will or state intestacy laws.

How to buy probate real estate

Real estate sold in a probate sale can be a very good bargain. Generally, the executor or administrator wants to sell the property as quickly as possible, and therefore may be more willing to accept an offer below market value. This also means that it’s common for probate real estate to be sold “as-is” or without improvements/renovations.

Here’s how to find and purchase probate property—and what to expect along the way.

1. Locate probate listings in court records

When a property is sold by the court, it is placed for sale like in an auction. Your local court may list the properties available on its website. It's also possible to track down properties for sale by researching people listed in obituaries and determining if they left property behind.

Most probate cases are filed in the county where the deceased person lived, and these records are public information accessible through the clerk of court's office. Look for recently filed probate cases and note the case numbers, deceased person's name, executor or administrator information, and any property addresses mentioned in the initial filings. Many courts also maintain online databases that allow remote access to probate filings.

2. Assess property value and risks

Evaluating probate properties requires additional due diligence beyond typical real estate analysis, as these properties often come with unique challenges and opportunities. Start by researching the property's ownership history, outstanding liens, and current condition to identify potential issues that could affect the transaction.

Use online tools like county assessor websites to review property tax records, recent sales of comparable properties, and any code violations or liens against the property. Drive by the property to assess its condition, neighborhood, and potential repair needs, keeping in mind that probate properties are often sold "as-is" without warranties or guarantees.

Factor in potential repair costs when assessing the investment potential. If you’re planning on flipping the property, consider holding expenses and the time required to bring the property to market condition when calculating your maximum offer price.

3. Make an offer

Depending on the jurisdiction, you must submit a bid or appear at the auction. If the executor is selling the property to satisfy creditors, you must send an offer to the executor. The property may or may not be listed for sale with a real estate agent. In many states, the court must approve the purchase offer, which can take several weeks. If court approval is required, factor in additional time for the confirmation process and potential overbidding scenarios.

The court confirmation hearing typically occurs 2–4 weeks after the executor accepts your offer, during which time other parties can submit higher bids following specific legal procedures. Prepare for potential overbidding by researching your state's overbid requirements, which typically require subsequent bids to exceed your offer by specific amounts (often 5%–10% of the first $10,000 and smaller percentages on higher amounts). Decide in advance your maximum price and bidding strategy, as confirmation hearings can become competitive auctions.

Common challenges with probate property

Heirs can also seek a sale after they inherit the home through probate law, at which point the home is technically no longer probate property. 

Probate property, especially real estate, involves complex legal requirements that vary significantly by state, creating potential pitfalls for unprepared buyers and sellers.

State-specific requirements and variations

Probate real estate laws differ substantially between states, affecting everything from court approval requirements to executor authority and sale procedures. Some states have streamlined probate procedures for smaller estates or when all heirs agree to property sales, while others maintain strict court supervision regardless of estate size. Research your state's probate code or consult with a local probate attorney to understand the specific requirements that will affect your transaction.

Title issues and property liens

Probate properties often come with title complications that require careful investigation and resolution before sales can close. Common issues include outstanding mortgages, unpaid property taxes, mechanic's liens, and judgment liens against the deceased person that may attach to their real estate. Buyers should always require title insurance and thorough title searches when purchasing probate property.

In some cases, family disputes over property ownership or sale terms can create title clouds that prevent or delay sales. These disputes may require court resolution and can significantly extend transaction timelines. Work with experienced title companies familiar with probate transactions to identify and address potential title issues early in the process.

Insurance requirements during probate

No matter who is selling the property—the court, the executor, or the heirs—it's important to make sure the home is insured throughout the process, as the homeowner's insurance policy most likely expired when the deceased died. Therefore, a new policy must be purchased in the name of the current owner, either the estate of the deceased or the heirs who have inherited and wish to sell it, so that it is protected against fire and other damage.

Obtaining probate property insurance can be challenging, as insurance companies may view vacant inherited properties as higher risk. Some insurers specialize in estate and probate property coverage, offering policies designed for properties in transition. The executor should secure coverage immediately upon appointment to avoid gaps that could expose the estate to significant liability.

Probate property FAQs

What’s the difference between probate property and inherited property?

Probate property refers to real estate that is currently going through the legal probate process and hasn't yet been distributed to heirs. The property is owned by the deceased person's estate and must be sold through probate court procedures with executor or court supervision.

Inherited property is real estate that has already passed through probate and been legally transferred to heirs. Once you inherit property through completed probate proceedings, you own it outright and can sell it like any other real estate transaction without court involvement or probate-specific procedures.

Do all estates require probate to sell real estate?

Not all estates require probate to transfer real estate, though most do unless specific legal arrangements were made during the owner's lifetime. Properties held in living trusts, jointly owned with rights of survivorship, or with transfer-on-death deeds can often transfer directly to beneficiaries without probate proceedings. Small estates may also qualify for simplified probate procedures, allowing real estate transfers through affidavit processes or summary administration rather than full probate.

How long does a probate real estate sale take?

Probate real estate sales typically take 6–12 months from the initial probate filing to closing, though timelines vary based on state requirements, estate complexity, and whether court approval is required. Simple estates in states with streamlined procedures may close in 3–4 months, while complex estates or those with disputes can take 18 months or longer.

Can heirs sell property before probate is complete?

Heirs generally cannot sell property before probate is complete because they don't yet have legal ownership of the real estate. The property belongs to the deceased person's estate during probate, and only the appointed executor or administrator has authority to sell it following proper legal procedures.

There are limited exceptions where heirs might have immediate ownership rights, such as when property was held in joint tenancy with rights of survivorship or when a transfer-on-death deed was properly executed. These situations typically avoid probate entirely, giving heirs immediate ownership and the right to sell.

Are there risks to buying probate property?

Buying probate property involves several unique risks. Title issues are common, as probate properties may have outstanding liens, unpaid taxes, or disputed ownership claims that complicate the transaction.

Properties are also typically sold "as-is" without warranties or guarantees about their condition. Executors may have limited knowledge, and you may not have full access for inspections before purchase. Legal complications can arise if probate procedures weren't followed correctly, family disputes emerge, or creditor claims affect the property.

How LegalZoom can help with the probate process

Navigating probate real estate transactions requires understanding complex legal requirements that vary by state and situation. Whether you're an executor managing estate property sales, an heir dealing with inherited real estate, or an investor seeking to purchase probate properties, having access to experienced legal guidance can make the difference between a smooth transaction and costly complications.

For those planning ahead, LegalZoom can help you create a living trust to avoid probate and simplify the transfer process for your beneficiaries. If you’re already in probate, you can get probate and executor assistance for many of your needs through our Legal Assist Plan. Get started today to get unlimited 30-minute consultations with an attorney as you go through the probate process.

Brette Sember, J.D. contributed to this article.