Real Property as Sole Estate Asset – is Probate Required?
Joe’s parents both died this year. Real property is the sole estate asset. Indeed, the only asset in their estate was their family home. Real Estate was the Sole Estate Asset. His parents left a Last Will and Testament. Joe has been staring at this Will and wondering whether he needs to file for probate. He heard that he may not have to probate when real property is the sold estate assets.
Technically, under New York State law (Surrogate’s Court Procedures Act Article 19), property vests in the decedent’s heirs or legatees at the decedent’s death. As such, Joe technically is vested with title to the house immediately upon the death of the last parent. With real estate as the sole estate asset, it vests in the beneficiaries or distributees by operation of law.
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- NEW YORK PROBATE PROCESS
- Probate & Estate Administration
- Real Property as Sole Estate Asset
- Preliminary Letters Testamentary
While Not Required, Joe May Still Decide to Probate When Real Property is Sole Estate.
Although Joe does not need to probate the surviving parent’s Will in order to commence ownership of the real property, Joe may face issues if he wants to sell the property in the future. This is because in order to sell the property, the purchaser will want to make sure that Joe can render good title. The purchase will typically run a title report. The purchaser will also want to procure title insurance. Title insurance will protect the purchaser in the event that another party comes along claiming that the house was somehow wrongfully conveyed to the purchaser.
Before issuing title insurance, title companies will want to be sure that the seller is indeed qualified to pass the property. Title companies will want proof that the seller is qualified to sell the property.