An estate has a finite lifespan, particularly if your mom left a will and didn’t create a living trust to hold her property in the trust's name. Her house can’t remain in her estate indefinitely because the estate closes when the probate process is completed. Her property never actually goes into the estate’s name per se because the estate isn’t a permanent legal entity. The house is in her name and if it stays that way after her death, this may cause you some problems down the road.
What Probate Does
Probate is the legal process of transferring ownership of your mother’s assets from her name to that of her beneficiaries. It involves several other issues as well, such as making sure that her will is valid and paying her debts and taxes. The probate process has a reputation for lasting a long time, but in reality, even complicated estates can sometimes settle and close within a year. At the end of this time, the executor of your mother’s estate, who is the person she named in her will to oversee the distribution of her assets, will create and record a deed to change title of her home into the name of the beneficiary who is to receive it.
Read More: When Do the Assets Get Distributed After the Probate of a Will?
If you don’t probate your mother’s will, her house will remain in her name even after her death. This doesn’t mean that you can’t live in it or otherwise make use of the property, but you won’t own it. If you don’t own it, you can’t sell it. You also can’t use it as collateral for a loan. If you never want to do either of these things, not transferring title might not affect you, but if you do want to sell it or use it as collateral, you may have a problem. A handful of states have deadlines by which you must probate a will, and if you miss the deadline, the process to transfer title becomes much more complicated.
In some cases, probate isn’t necessary to transfer a property out of the deceased’s name. If your mom held title to the property as a joint tenant with someone else, such as you or one or more of your siblings, these deeds come with rights of survivorship. This means ownership transfers automatically and directly to her co-owners when she dies, so the property would not remain in your mother’s name and it would bypass her probate estate. Facilitating the transfer is usually just a matter of presenting the death certificate and deed to the county recorder, although some states may require that you sign an affidavit, attesting to the fact that you’re the other owner cited in the deed.
If your mother created a living trust, this changes the rules. She likely transferred ownership of the house from herself to her trust during her lifetime. Trust assets do not go through a probate procedure, so they do not have to close after a relatively short period of time the way a probate estate does. Your mother’s trust might maintain ownership of the property indefinitely if this is what she elected when she created the trust’s terms. Otherwise, the trustee must follow whatever directions she laid out in the formation documents and create a new deed to transfer the property from the trust to its named beneficiary just as the executor of her will would do if the property was an asset in her probate estate.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.