Do I Have to Probate My Deceased Mom’s Will in Order to Sell her Real Property?

Unfortunately, this is not such a cut and dry answer. The answer depends on who has title to the property. Is the house in just your mom’s name? Your mom and dad? Your mom and yourself?

Depending on the type of situation you fit into, you might have to probate the property to be able to sell it.

Probate applies only to property in your probate estate. This can be real property or personal property. However, usually probate property is property you own alone at death.

Non-probate property, on the other hand, would be assets that pass to a named beneficiary. Examples would be an IRA, life insurance, property left in a Trust, and real property you co-own. These non-probate assets pass automatically to the designated beneficiary, thus defeating the need for probate.

If your mother died, leaving a will, which left a house she owned alone, to you, then you would need to probate the will in order to have the property be transferred to you, and be given the legal right to sell the property.
On the other hand, if you and your mother owned the property together, for example, as joint tenants with right of survivorship, then upon your mother’s passing, the property would automatically go to you, making probate unnecessary.

To discuss your legal rights to your loved one’s real property, call the Law Offices of Albert Goodwin at (212) 233-1233.