Probate involves the legal process of transferring the title to property from the deceased’s name into the name of her beneficiary after her death. It is only necessary if the home does not pass to a beneficiary by “operation of law,” or when the law automatically transfers title after the death of one of the owners because of the terms of a contract. Depending on the title, a home might bypass the probate process whether the deceased left a will or not.
If title to a home is held in the deceased’s sole name, it is part of his estate and should be mentioned in his will. Probate is necessary to legally transfer the deed to the home’s named beneficiary. When the home is encumbered by a lien or mortgage, most state laws require that the beneficiary either assume responsibility for the mortgage or refinance it into her own name. The deceased’s estate is rarely responsible for satisfying the mortgage unless the home does not pass directly to a beneficiary and instead becomes a portion of the “residual” of the estate, the value left to be apportioned between beneficiaries after debts and expenses are paid.
In community property states, if the deceased purchased or acquired a home during the course of her marriage, the law states that she and her spouse each own half of it. In community property states, a married person can only bequeath separate property in her will, anything acquired before the marriage or personally inherited during the marriage. A surviving spouse automatically becomes the owner of a home after the other spouse’s death if it is community property. Probate is not required.
“Transfer on Death” Property
Some deeds include “transfer on death” clauses which pass title directly to a named beneficiary by operation of law. These deeds are more common in situations where the home is owned in the deceased’s sole name. Real estate held this way bypasses probate.
Tenants in Common
When a deed is held by two or more people as tenants in common, each owns a share of the home. When one owner dies, his share passes to his estate and to any beneficiary he named in his will. Therefore, if the deed to a home is titled to tenants in common, the deceased’s portion must pass through probate.
Read More: Tenants in Common in a Will
Joint Ownership with Rights of Survivorship
Two people -- commonly husband and wife -- can also hold a deed jointly with rights of survivorship. When a “rights of survivorship” clause is included in a deed, the surviving owner automatically owns the entire property when the other dies. Title is transferred by operation of law and does not require probate. Generally, it is only necessary to provide the county clerk with a certified copy of the death certificate. However, survivorship rights must be clearly specified in the deed. Otherwise, some states might deem it to be held as tenants in common and it would have to be probated for title to transfer.
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.