How to decide if your assets should go through probate is a question many people face when planning their estate or handling a loved one’s affairs. While the decision to probate is typically made during the owner’s lifetime and outlined in their estate plan, there are cases where beneficiaries must make that choice after death. This often occurs when real property is the sole asset in an estate and wasn’t addressed through probate-avoidance strategies.
Benefits of Probate When Real Estate Is the Sole Estate Asset
Under New York State law, real property “vests” to an owner’s heirs at the moment of the previous owner’s death. For example, if the family home is the only asset in the estate, the title to the house will pass to the nearest living relative by operation of law immediately upon the death of the current owner.
While the ownership of real property may have been passed to you without the need for probate, failing to probate the property could cause problems in the future—particularly if you plan to sell the property. The purchase of the property will require your ability to prove that you are the only person who has an ownership claim to the property and you are qualified to pass it on. This can be done several ways, including:
- An executor’s or administrator’s deed. Probate is one way, arguably the best way, to establish a clear title to a property. When you file a petition for probate or administration, you would sign a deed (and related tax forms) that officially transfer the property into your name.
- A court order. If you inherited a parcel of real property (such as a plot of land), you could file a petition seeking court approval to sell the parcel instead of filing for probate or administration. If the court granted the petition, you may be able to execute one deed conveying the property from its former owner into the purchaser’s name.
- An heirship affidavit. A title company may accept a notarized heirship affidavit stating that you are qualified to pass a valid title.
Our attorneys can help you with all matters relating to estate planning, probate, and estate litigation. Contact us today through our online form to set up an initial consultation with a Brooklyn probate attorney.
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