Home Can you empty a house before probate?

Can you empty a house before probate?

church sound microphone
(© chalongrat – stock.adobe.com)

It is quite a tragedy when a loved one passes away. You may want to remember them by keeping sentimental objects from their home, or perhaps they wanted you to inherit a specific item.

According to probate laws, even family members may not be able to remove items from their loved one’s home after they pass away. It is important to learn about probate, what it entails, and how to prepare for it — doing so before their passing may ease your mind when such a trying time comes.

What is probate?

Probate is a court-supervised period of holding that prevents anyone from removing items from a house after the owner has passed. It ensures assets are appropriately distributed according to instructions in the deceased’s will.

When an individual leaves a will behind, the executor named in this documentation is responsible for distributing the assets. This happens in probate court.

However, there are several circumstances wherein probate may not be necessary. Typically, this happens when assets are distributed through living trusts, joint ownership, community property law, or transfer-on-death needs.

How long does probate last?

How lengthy the probate process lasts depends on the deceased’s circumstances and may run anywhere from a few months to a few years. This includes the complexity of the estate, the number of people involved, and the instructions in the will.

While a court may distribute assets per the deceased’s wishes, it is more likely that an executor was appointed per the will or trust to oversee the estate.

The probate period can take even longer if the deceased left behind both a trust and a will, and there are conflicting provisions between them.

Unfortunately, executors can’t distribute assets before probate is complete. Once started, the probate process must be completed before any items can be removed from the deceased’s house.

What can you do during probate?

Though you won’t be able to remove anything from the house during probate, you can still address other matters related to the home and property. These include:

  • Changing the locks to ensure no one violates the probate period
  • Forwarding the mail to your or another family member’s address
  • Review recurring monthly payments and cancel any unnecessary ones, such as magazine subscriptions
  • Transfer payment of the mortgage and other monthly obligations to your or another family member’s name

If you are nearing the end of the probate process and already know what you want to do with the house and items after probate ends, you may also want to contact an appraiser or estate liquidator. Either will be able to tell you how much the home and things are worth and how you can go about selling them.

Why is probate important?

“Though probate may seem like a legal hassle interfering with your grieving, it can be a useful and necessary step to prevent fraud or the improper distribution of assets,” says probate attorney  Joshua Nelson.

Probate ensures that the deceased’s wishes are followed, and assets are distributed per their instructions. It prevents people from accidentally (or purposefully) violating provisions in wills or trusts during an emotionally chaotic time.

Taking this time can also prevent you from making other hasty decisions about the house itself and any items or assets that aren’t covered in a will or trust. You will have time to decide what you want to do, what would be best for your family, and what your loved one may have wanted.

What happens after probate?

Assets will be distributed after probate ends per the will and trust provisions. The house, if not entailed, and any unclaimed items therein will be passed down to family members or sold through the courts.

Items in the house will either be distributed to family members or auctioned off if the probate courts put the house up for sale.

Keep in mind that you may not just be inheriting assets. You will also be responsible for outstanding debts, such as the mortgage, utility bills, and other monthly payments.



Have a story idea or a news tip? Email editor Chris Graham at [email protected]. Subscribe to AFP podcasts on Apple PodcastsSpotifyPandora and YouTube.