When a loved one passes away owning property in their name alone, real estate in probate becomes one of the most complex challenges a family can face. As a Michigan real estate and probate professional, I see this scenario regularly. Grieving families discover they cannot sell, transfer, or even refinance a home because it is legally tied up in the probate court process.
Before the executor of an estate can convey real estate, several specific legal steps must take place. The order of those steps matters enormously.
This guide explains exactly what happens to real property during probate. We will explore who has the legal authority to act, and precisely when that authority begins and ends.
What Is Probate?
Probate is the legal process by which a state court reviews a deceased person’s will to determine whether it is valid and authentic. A probate action also refers to the legal administration of a decedent’s assets. The process typically focuses on the existence or non-existence of a valid will.
Probate courts form a separate part of the state court system. In a probate action, the court reviews the assets of a deceased person and determines the valid heirs of the estate.
The probate court serves as the legal authority that oversees the entire process. Its duties stretch from authenticating the will to approving the final distribution of assets to beneficiaries.
How to Prevent Excessive Probate Costs
Individuals can avoid exorbitant probate costs and complexities by using proactive financial planning tools. These structures include living trusts, explicit beneficiary designations, or jointly held property.
However, if real estate is held solely in the decedent’s name at death, a probate action is typically required. In Michigan, probate cases proceed as either formal or informal proceedings.
Informal probate fits best when the will is straightforward and no disputes exist among heirs. Formal probate is conducted before a probate court judge. This path is advisable when disputes are likely, the will is contested, or the estate assets are particularly complex.
How the Probate Process Works
Typically, a professional will assist the heirs of an estate through the probate process. The court pleadings include legal petitions for court analysis and involve the administration of estate assets previously owned by the deceased person. This includes real estate that was not properly titled at the time of death.
Real estate that is not held jointly or deeded before a decedent’s passing remains subject to strict probate court supervision.
Filing the Petition and Opening the Estate
The probate process begins when an interested party files a petition with the probate court. This party is usually a family member or the executor named in the will. The petition must be submitted to the court in the county where the decedent lived.
If the deceased owned real estate in Michigan but lived elsewhere, the filing occurs in the county where the real property sits. Along with the petition, the original will and a certified copy of the death certificate must be submitted to the court.
Notifying Heirs and Creditors
After the court officially appoints the personal representative, that representative must complete critical early duties. They must provide formal notice to all potential heirs, beneficiaries, and creditors of the estate.
This notice must include specific legal language designed to protect the estate from future claims. Failure to properly notify interested parties can expose the personal representative to personal financial liability.
Inventorying Assets and Managing the Estate
The personal representative must prepare a detailed inventory of all estate assets within a set period after the court issues the letters of authority. This inventory must list each asset in reasonable detail. It must include the fair market value at the time of death and any encumbrances, such as mortgages, attached to real estate.
After the legal proceedings establish an authentic will and assets are accounted for, the court issues a final ruling. This ruling dictates how the assets are divided and distributed to the beneficiaries. If the deceased did not leave a will, the court provides instructions consistent with state intestacy laws.
Which Real Estate Must Go Through Probate?
Not all assets and not all real estate must be probated. Understanding which properties bypass probate helps families plan ahead and avoid unnecessary delays.
Pension plans, life insurance proceeds, 401(k) plans, and individual retirement accounts (IRAs) use designated beneficiaries. By contract, the proceeds from these financial assets go directly to the named heirs without probate. Also, absent any active disputes, jointly owned assets can avoid probate court action as well.
Houses and other real estate held jointly with rights of survivorship bypass the probate system completely. However, if the decedent is the only person named on a deed at the time of death, the real estate must enter a probate action. This can be a lengthy process lasting many months.
Planning Tools to Bypass the Court Process
There are planning tools that can help families avoid probate on real estate altogether:
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Revocable Living Trusts: This structure allows the owner to retain full control of property during their lifetime while ensuring it passes directly to beneficiaries upon death.
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Lady Bird Deeds: In Michigan, an enhanced life estate deed transfers ownership to a beneficiary while allowing the original owner to retain all rights to the property until death.
If these planning tools are not in place at the time of passing, real estate in probate becomes the only path forward. If a parent dies and their home is titled solely in their name, that real estate cannot be legally sold, refinanced, or transferred until it goes through the probate process. This is one of the most common and costly estate planning mistakes I see.
Who Is the Personal Representative and What Authority Do They Have?
When a decedent leaves a will, they are legally known as the testator. In the will, the testator names an executor or personal representative. This person is responsible for initiating the probate process after the decedent dies. In Michigan, the official legal term for this role is personal representative, although many people still use the term executor.
Typically, the testator chooses an attorney, a financial advisor, or a close relative. Common choices include a surviving spouse, an adult child, a sibling, or a trusted friend. Whoever is chosen should be trustworthy, organized, and willing to engage with complex financial processes because the responsibilities are significant.
The Representative’s Fiduciary Duty
Once appointed by the probate court, the personal representative takes on a strict fiduciary duty to the estate and its beneficiaries. This means every decision they make must serve the best interest of the estate, not their own personal interest.
For real estate specifically, the representative cannot sell property well below fair market value. They cannot improperly favor one heir over another, and they cannot purchase estate property for themselves without full transparency and court oversight.
A representative who violates their fiduciary duty can be held personally liable by the beneficiaries. The probate court can also remove them from the role. This risk is why engaging an experienced professional is so critical. Even a well-meaning family member can inadvertently cause serious legal problems without proper guidance.
Letters of Authority: The Legal Permission Slip
The personal representative is responsible for filing the will with the probate court. Once the court accepts the authenticity of the will, it officially appoints the representative and issues a document called Letters of Authority.
This document serves as the legal permission slip that gives the representative the power to act on behalf of the estate. It grants the explicit authority to manage, list, lease, or sell real estate.
Without Letters of Authority from the probate court, an individual has no legal power to do anything with estate assets. Simply being named as an executor in a will does not automatically confer any legal authority. The court appointment must happen first.
When Can an Executor Convey Real Estate in Probate?
The personal representative can convey real estate belonging to the estate only after they receive the court-issued Letters of Authority. Once they are formally designated, they have the power to manage, rent, lease, list, or sell the real estate while following the instructions of the will.
Unless otherwise restricted by the court, a representative can sell or convey real estate during the active probate action. It is important, however, to review the specific court decisions that provide or restrict authority because no two probate actions are identical. Courts can decide to restrict the sale of real estate until the probate estate closes completely.
Critically, the representative must complete the property sale while the estate is still open. It is not a long-term assignment. The estate generally needs to close within a defined timeframe. Once it closes, the powers of the representative expire entirely. A representative who has not completed the conveyance of real estate before the closure loses the authority to do so.
Can a Property Sell Without All Beneficiaries Approving?
Generally, yes. A personal representative can sell real estate without unanimous approval from all beneficiaries, provided the will does not explicitly restrict the sale and the representative acts within their fiduciary duty.
However, the representative must keep all beneficiaries fully informed about the sale. Transparency represents a clear legal obligation, not just a courtesy.
If a beneficiary believes the representative acts improperly, they have the right to challenge that decision in probate court. For example, they can object if a property is listed far below fair market value.
The court will then evaluate whether the proposed sale aligns with the representative’s fiduciary duty. If the decision to sell is contested and the judge determines that court approval is required, the representative must obtain it before proceeding.
The will itself serves as the governing document. If the will explicitly directs that a specific property should go to a specific beneficiary, the representative must honor that instruction. The property cannot simply be sold to divide the cash. If the will is silent on the matter, the representative holds broader discretion but must always act in the best interests of the heirs.
What Makes Selling Probate Real Estate Different?
Selling a property that is the subject of a probate proceeding is not like a traditional home sale. Usually, transaction specialists work with the decedent’s family during the probate proceedings as well as in the real estate process. Sometimes the decedent’s financial advisors are also involved in probate sales.
If the estate representative plans to sell the real property, they should first secure their Letters of Authority from the probate court. They must then provide those letters to a real estate agent who specializes in probate properties. Some sales agents are credentialed as Certified Probate Real Estate Specialists, focusing their entire business on probate homes.
There are also practical complications that arise with probate properties that rarely occur in conventional sales:
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The property may have been vacant for months, leading to deferred maintenance issues.
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Multiple heirs may hold conflicting opinions on the ideal listing price or timing.
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The estate may have outstanding debts, including back taxes, a mortgage, or lines of credit, that must be settled at the closing table.
All of these factors can slow down the transaction and require careful legal coordination. For real estate contract issues specifically, you can explore the firm’s
Real Estate Investors and Probate Properties
Entrepreneurs involved in real estate investing actively seek out probate property. They find potential probate homes through available county filings and public records. However, if the decedent’s property is not probated promptly, or if a delay hits the estate proceedings, investors are forced to wait.
Potential buyers will rarely wait indefinitely for a representative to complete a slow probate process. The entire process of a probate action can take months, sometimes as long as a year, which can easily kill real estate deals for a family.
This delay becomes especially difficult for heirs needing to pay off estate debts, such as an outstanding mortgage that continues to accrue interest while the property sits in court.
You can avoid legal issues and lost business opportunities when you involve a professional who can assist estates in managing the probate process efficiently. An experienced attorney can help keep the process on track, manage creditor claims, and protect the estate’s value throughout the sale. If you need direct assistance, visit our primary
How to Avoid Probate Delays on Real Estate
The best time to address real estate in probate is before probate becomes necessary. Proactive estate planning preserves property values, protects family relationships, and saves significant time and money. Here are the most common strategies I recommend:
1. Establish a Revocable Living Trust
Property held in a properly funded trust does not go through probate. Ownership transfers directly to the named successor trustee for distribution to beneficiaries without court involvement or delay.
2. Use a Lady Bird Deed
In Michigan, an enhanced life estate deed allows a property owner to retain full control during their lifetime. It automatically transfers the property to a named beneficiary upon death, completely bypassing the probate process.
3. Ensure Joint Ownership Is Properly Documented
Property held jointly with rights of survivorship passes automatically to the surviving owners at death. However, this ownership structure must be correctly documented on the deed because verbal agreements are not enough. You can read more about how title is transferred at our
4. Draft a Clear, Unambiguous Will
Even when probate cannot be avoided entirely, a well-drafted will dramatically reduces the risk of disputes among heirs. It provides clear direction to the representative on how to handle real estate assets. For additional context on statutory guidelines, you can review the official probate administration metrics provided by the
Frequently Asked Questions
What is ‘real estate in probate’ and when does it apply? Real estate in probate refers to property that must be administered through the probate court process because it was held solely in the decedent’s name at the time of death without joint ownership, a beneficiary deed, or a funded trust. Probate is required before the property can be legally sold, transferred, or refinanced by the heirs.
When can an executor legally sell or convey real estate? An executor or personal representative can legally sell or convey real estate only after the probate court has formally appointed them and issued Letters of Authority. Without that court appointment, the representative has no legal authority over estate assets, regardless of what the will says.
Can an executor sell an estate property without all beneficiaries approving? Generally, yes. A personal representative can sell real estate without unanimous beneficiary consent as long as the will does not prohibit the sale and the representative fulfills their fiduciary duty. However, beneficiaries must be notified, and any sale that appears below fair market value can be challenged in court.
How long does the probate process take in Michigan? The probate process in Michigan typically takes between seven and twelve months, depending on the complexity of the estate, the number of heirs and creditors, and whether any disputes arise. Straightforward estates with few creditors may close faster; contested estates can take considerably longer.
What happens to a mortgage on a property that is in probate? A mortgage on a probate property remains active and continues to accrue interest while the estate is being administered. If the mortgage lender learns of the owner’s death, they may call the loan due. This is one of the key reasons why moving through the probate process promptly is so important.
What is a Letters of Authority in Michigan probate? Letters of Authority is a legal document issued by the Michigan probate court that officially grants the personal representative the power to act on behalf of the estate. It is required to conduct virtually any transaction involving estate assets, including selling or transferring real estate.
Can probate on real estate be avoided in Michigan? Yes. Common strategies include placing property in a revocable living trust, titling property with joint ownership rights of survivorship, or using a Lady Bird deed. The key is to act before death because planning options are very limited once probate becomes necessary.
Conclusion
The personal representative can convey real estate belonging to the estate only after they receive permission from the probate court. Once designated by the court, they have the authority to manage, rent, lease, list, or sell the real estate following the instructions of the will.
They must complete this process while the estate remains open. It is not a long-term assignment. The estate must close on time, and once it closes, the powers of the representative expire completely.
Navigating real estate in probate is rarely simple. Every estate is different, every will is different, and every probate court may handle proceedings uniquely. What remains constant is the value of having an experienced professional guiding the process. Whether you are a representative trying to understand your authority or a family trying to plan ahead, the right guidance makes all the difference.
Soble Law helps clients identify where real estate and business deals break down, define the legal risk, and take control of the next step.
Call: 888-789-1715
Website: www.provenresource.com
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About David Soble: David is a seasoned real estate and finance attorney with more than 35 years of experience, combining his background as a “big bank insider” with a commitment to demystifying complex legal issues for his clients. As the founding attorney of Soble Law (Soble PLC), he leads a specialized team in Michigan and Ohio that handles real estate transactions, contract disputes, probate, and financial litigation. Known for a practical, no-nonsense approach and peer-rated excellence (Martindale-Hubbell AV Preeminent), Soble and his team strive to protect clients’ property and financial interests with clarity, integrity, and experience.
Disclaimer: The information in this article is for general educational purposes only and does not constitute formal legal, financial, tax, real estate, finance, probate, or any other professional service or advice. Reading this content or contacting us does not establish an attorney-client relationship. Every situation is unique, and laws change frequently, so you should always consult with your own qualified attorney or professional advisor before making any decisions.
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