Step by Step: What Happens to a House in Probate

Can the Family Live in the House During Probate?

This question causes enormous confusion and anxiety for families. The answer depends on the circumstances:

• A surviving spouse typically has the right to continue living in the marital home during probate in most states — but their legal authority to make major decisions about the property (selling, refinancing) requires either court approval or their own ownership interest.
• An adult child or family member who lived in the home may be able to continue living there during probate — but this requires the executor's cooperation and sometimes court approval, especially if there are competing heirs.
• A family member not in possession of the home cannot simply move in during probate — the executor controls the property and is responsible for its management.
• Heirs who want to sell immediately must wait for the court process to conclude before any sale can close. No title insurance company will insure a sale from a probate estate until the final court order is issued.

What Probate Costs for a Home

Real estate is typically the most expensive probate asset because fees are calculated on gross value — not equity. Here's what probate costs for a home at various price points:

• $300,000 home: $9,000–$24,000 in combined attorney and executor fees (3–8% of gross value) — regardless of whether the home has a $200,000 mortgage outstanding
• $400,000 home: $12,000–$32,000 in combined fees
• $500,000 home: $15,000–$40,000 in combined fees
• $700,000 home: $21,000–$56,000 in combined fees

These fees are paid from estate assets before any distribution to heirs. On top of attorney and executor fees, add appraisal costs ($500–$1,500), court filing fees ($500–$2,000), and carrying costs during probate (mortgage payments, taxes, insurance, maintenance over 12–18 months).

Can the Home Be Sold During Probate?

Yes — but only through a specific court-supervised process that adds time, complexity, and cost:

• The executor petitions the court for authority to sell the property
• The court may require an independent appraisal to establish fair market value
• Some states require the sale to be published and allow other potential buyers to bid at a court hearing ("overbidding")
• The court must approve the final sale price and terms
• Closing cannot occur until the court issues its order approving the sale

This process typically adds 2–4 months to a sale timeline that is already extended by the probate proceeding itself. A buyer who offers to purchase a probate property must be patient — most conventional buyers walk away when they understand the timeline, limiting the pool of potential purchasers and potentially reducing the sale price.

Common Mistakes

• Allowing mortgage payments to lapse during probate. The estate is responsible for the mortgage during probate. Missed payments go on the property's record and can result in foreclosure proceedings — even while the property is in probate.
• Assuming heirs can use the home freely. Until the court issues a final order transferring title, no heir has clear legal ownership. Major decisions about the property require executor approval and sometimes court authority.
• Not maintaining homeowners insurance during probate. Once a homeowner dies, the property's insurance situation changes. Heirs must ensure coverage remains in place — an uninhabited property in probate may require a specific type of vacant home insurance.
• Expecting a quick sale. Buyers of probate properties wait months for court approval. This significantly limits the buyer pool and can depress the sale price compared to a non-probate sale.
• Having a trust but not including the home in it. The single most common gap — a trust exists but the home was never re-deeded into it. The home goes through probate as if no trust existed.

Real-Life Example