When a house is in probate, it means the home was titled in the name of someone who has died and a court now oversees what happens to it. Until a judge authorizes a personal representative to act, no one can legally sell the property, refinance it, or move it into an heir’s name. The court supervises the process so that the deceased person’s debts get paid first and whatever is left passes to the right people. Depending on the estate, that can take anywhere from six months to two years.
Why a House Ends Up in Probate
A home lands in probate when the deed lists the deceased as the sole owner and nothing on file transfers it automatically at death. Tenancy in common works the same way: each co-owner holds an independent share that doesn’t pass to the other owners when one of them dies, so that share goes through probate too.
Three common ownership setups keep a home out of court entirely. Joint tenancy with right of survivorship passes the home to the surviving co-owner at the moment of death. A Transfer on Death Deed, available in roughly half of all states, names a beneficiary directly on the deed. A living trust holds the home in the trust’s name, so the individual never technically owned it at death. If none of those applies, probate is usually unavoidable, though every state offers a simplified procedure for smaller estates, with thresholds ranging from about $15,000 to $200,000. Most homes are worth more than that, which puts them into a formal probate case.
What Happens to the House During Probate
Before anyone can touch the property, the court has to appoint someone to manage the estate. If there is a will, the court issues Letters Testamentary to the executor named in it. If there is no will, the court appoints an administrator and issues Letters of Administration. That document is what gives the personal representative legal authority to pay bills on the house, access estate funds, sign contracts, and eventually transfer or sell it.
Early on, the representative also has to order a date-of-death appraisal from a certified appraiser. That value drives tax calculations, debt coverage, and the eventual distribution to heirs. Appraisal fees typically run $350 to $1,300.
Keeping the Home Insured and Maintained
While the case is open, the representative is responsible for making sure the house doesn’t lose value. That means property taxes, basic upkeep, and insurance. This last one trips up a lot of families: most standard homeowner policies void coverage after 30 to 60 days of vacancy. If the deceased lived alone and nobody has moved in, the representative needs a vacant-home policy. Failing to tell the insurer the home is empty can be treated as misrepresentation and give the company grounds to deny a claim.
If the property deteriorates on the representative’s watch because of neglect, like a burst pipe or an unaddressed roof leak, the representative can be held personally liable for the lost value. Courts take this duty seriously because both heirs and creditors have a financial stake in what the home is worth at the end.
Debts, Liens, and Medicaid Recovery
Once the estate is opened, creditors have a statutory window to file claims. In most states that period runs from three to nine months, with the exact length depending on whether the creditor got direct notice or only saw a published notice. The representative cannot distribute the house, or anything else, until that window closes. Transferring property early can expose the representative personally to any debts that later turn up.
When the estate’s cash isn’t enough to cover its debts, administrative costs come first, then funeral and burial expenses, federal tax debts, final medical bills, state taxes, and finally unsecured debts like credit cards. If the liquid assets can’t cover these obligations, the house itself may have to be sold to satisfy them. Heirs don’t inherit the debt, but they also don’t inherit a home the estate couldn’t afford to keep.
Medicaid Estate Recovery
If the deceased received Medicaid-funded nursing home care, home health services, or related assistance after age 55, federal law requires the state to seek reimbursement from the estate.1Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets The house is usually the biggest asset in the estate, so it’s the main target. States can place a lien on the home or demand repayment from the sale proceeds before heirs receive anything.
Federal law protects the home from recovery in several situations: a surviving spouse is alive, a child under 21 lives there, or a blind or disabled child of any age would be affected. Some states also exempt the home when an adult child lived there for at least a year before the recipient’s death, or when recovery would cause undue hardship. The specifics vary by state, and the burden of proving an exception usually falls on the family.
The Mortgage Keeps Running
If the house has a mortgage, the lender cannot call the loan due just because the borrower died. The Garn-St. Germain Act bars lenders from enforcing a due-on-sale clause when a home passes to a relative at death, and the same protection covers transfers to a spouse or child.2Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions The loan stays in place on its existing terms.
Payments still have to be made. Federal regulations require mortgage servicers to treat confirmed successors in interest as borrowers, so heirs can get payment histories, receive statements, and apply for loan modifications or repayment plans.3eCFR. 12 CFR 1024.30 – Scope Probate does not automatically pause foreclosure, so if the estate falls behind, the representative should contact the servicer right away.
Selling or Transferring the Home
Two paths lead out of probate: a sale, or a transfer to the people entitled to receive the property.
Sales come up often. The estate may need cash to cover debts, or several beneficiaries may prefer to split proceeds instead of co-owning a house. When the will grants selling authority or the court has approved independent administration, the representative can list the home, negotiate, and close much like any other owner, though they can be held liable for selling below fair market value. Without that authority, or when the buyer is an heir or other insider, most states require court confirmation. The representative accepts an offer and petitions the court; at the confirmation hearing, the judge may open the floor to higher bids. Court-confirmed sales typically add four to eight weeks to a normal closing, and longer if anyone objects.
If the home is going to the heirs instead, the representative first pays all debts, waits out the creditor period, and files a final accounting. The judge reviews everything and issues a decree of distribution. The representative then executes a new deed and records it with the county, generally for $25 to a few hundred dollars in recording fees. At that point the house is out of the estate and the probate case can close.
How Long It Takes and What It Costs
Most probate cases run six months to two years. The creditor claim period alone eats three to nine months, and anything contested stretches it further.
The expenses come out of the estate before heirs receive anything. Expect court filing fees of $250 to $500 to open the case, $350 to $1,300 for the date-of-death appraisal, and attorney fees that generally run 2% to 6% of the estate’s value, or $150 to $500 per hour depending on how the lawyer bills. In states with statutory fee schedules, the personal representative is paid another 2% to 5% of estate value; other states allow “reasonable compensation” set by the court. Add property taxes, insurance, maintenance, and recording fees, and probating a house commonly costs several thousand dollars, sometimes tens of thousands for larger estates.
Taxes When You Inherit the Home
The most valuable tax rule for inherited property is the step-up in basis. When you inherit a home, your cost basis for capital gains purposes resets to the home’s fair market value at the date of death, not what the deceased originally paid.4Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent If a parent bought the house for $80,000 in 1985 and it was worth $400,000 at death, your basis is $400,000. Sell it later for $410,000 and you owe capital gains tax on only $10,000. This is why the date-of-death appraisal matters so much; use the wrong basis and you can overpay substantially or draw an audit by underreporting.5Internal Revenue Service. Publication 559 – Survivors, Executors, and Administrators
Federal estate tax almost never touches a probate house. For 2026, the federal exemption is $15,000,000 per individual following the One Big Beautiful Bill Act signed July 4, 2025, and up to $30,000,000 for married couples using portability.6Internal Revenue Service. What’s New – Estate and Gift Tax Some states impose their own estate or inheritance taxes with much lower thresholds, sometimes starting at $1,000,000, so state rules need a separate look.
How to Keep a House Out of Probate Next Time
Everything above is avoidable with planning. A living trust holds the home in the trust’s name, so it passes under the trust’s terms without any court case. Joint tenancy with right of survivorship transfers ownership to the surviving owner the moment the other dies. A Transfer on Death Deed names a beneficiary directly on the deed in states that allow it. Any one of these can take a house that would have spent a year in probate and move it in weeks, saving the family most of the costs described above.