People are often unsure whether their assets should go through probate upon their death. The decision to probate is typically made during the owner’s lifetime, and the method for avoiding probate court proceedings is included in his or her estate plan. However, there are some cases where beneficiaries can choose whether or not to go through probate after a loved one has died. The most common is when real property is the sole asset in a person’s estate.
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.
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