Can You Empty A House Before Probate?

If you recently lost a loved one, you may be wondering what to do with their home and its contents, especially if you don’t plan on keeping the home. Do you keep the home as-is for now, or do you empty the house before probate?

Before you begin moving items around and selling them, you should know what is allowed in probate and how you should prepare the home before selling it. If you aren’t planning on selling the home, you should understand the process of transferring the property and how to have a sale for the estate.

can you empty a house before probate

Why Should You Wait To Empty A House Before Probate?

If you’re the executor of the estate, you don’t want to empty a house too quickly, or you may get in trouble. It’s the executor’s job to act in the estate’s best interest and the deceased’s wishes. The court gives the executor powers, and in some cases, the court controls the estate until the probate is complete.

If anyone removes any items from the home before probate, then that person will be held legally responsible for the item. This includes giving items to people who aren’t listed in the Will. Family members may want some of the deceased’s items as something to remember them by, but you should avoid doing so, especially if they are not named in the Will. The executor’s job is to ensure the property is secure and that nothing becomes damaged or stolen. So, can you empty a house before probate? Let’s first talk about probate.

What Is Probate?

Probate is the legal process of opening someone’s estate after they have passed away. This is done through the court and may be supervised or unsupervised. This process ensures that heirs or beneficiaries receive the items they are entitled to.

If the person who passed away has a Will, you may be wondering if the probate process is different. In some cases, it may differ depending on whether an heir contests the decedent’s Will. However, even if the decedent did have a Will, the estate still needs to go through probate. The only way someone is able to empty a house after death is if probate is not required.

If your loved one’s estate has to go through probate, be prepared for how long the process may take. The length of probate depends on the size of the estate, its complexity, and what instructions were left by the decedent. It could take anywhere from six months to years to complete.

In some cases, the court may give the home directly to the beneficiary per the decedent’s wishes or appoint someone to oversee the estate and the steps involved.

The executor also isn’t able to throw any of the decedent’s property. Instead, they must wait until the probate is completed before doing so.

Clearing A House After Death, What Happens To The Contents Of The House?

You may be ready to start gathering your loved one’s items, but you’re likely unable to take anything from the home if it has to go through probate. However, there are a few things you must consider before starting to remove items.

First, you should file a petition with the probate court as soon as possible. You would file this petition along with the decedent’s Will, if they had one, in the county probate court where the person lived.

Before the removal or selling of any of the decedent’s items takes place, the executor must take an inventory of the contents to include them in the value of the estate’s assets. In some cases, items may potentially need to be sold to pay off any outstanding debts. This would typically happen through an estate sale.

Why Do You Have To Do Probate When Someone Dies? Can I Empty A House Before Probate?

You may be wondering why items in a home must go through probate after someone dies. The simple answer is that the home may contain items of value, like cash, jewelry, family heirlooms, antiques, and more. The courts want to prevent anyone from taking away items or emptying a house before probate to stop fraud or to stop the items from being given to one person when they are supposed to go to another according to the Will.

Since probate typically begins a few weeks to months after your loved one’s passing, this may be beneficial. This gives your family and the executor enough time to not rush into any decisions and potentially avoid any family disputes.

If the decedent owned multiple homes in different states, you likely need to open an ancillary probate in the other states to gain access to the property.

Why Do You Have To Do Probate When Someone Dies? Can I Empty A House Before Probate?

If you’re dealing with the death of a family member, you likely don’t want to deal with the court or any legal paperwork. But, unfortunately, you must go through probate to settle the estate in order to clean out the deceased’s home and sort through their belongings.

If There Is A Will

If your loved one left behind a Will, the executor will have directions or instructions on who should receive what and when. If you’re not sure if the deceased had a Will, you should check any secure places, like a safe, and check with other relatives as one of them may know where it is, or they may be the executor. A good time to do this would be when organizing and clearing a house after death.

Once you locate the Will, the executor will file the petition with the probate court. They will also need to complete a few additional steps in the probate process to ensure the estate is completed.

If There Is Not A Will

If there is no Will, someone must file a petition with the probate court as an intestate estate before clearing a house after death. Intestate estates must follow the laws of intestate succession. For example, in Michigan, according to intestate succession, the estate will be distributed as follows:

  • If the decedent had a spouse, no children, and no surviving parents, then their spouse would receive everything.
  • If the decedent was married and had children, then their spouse will receive the first $150,000 and half of the rest. The remainder will be distributed in equal shares to your children.
  • If the decedent had children who were not related to their spouse, then their spouse would receive the first $100,000 plus half of the remainder of the estate.
  • If the decedent had no surviving spouse and no descendants, their estate would go to their parents.
  • If the decedent had no spouse, no descendants, and no surviving parents, their estate would go to their siblings.
Are There Other Tasks The Executor May Need To Complete Before Emptying A House After Probate?

If you’re the executor of the estate, there are a few steps you need to take in the probate process before clearing a house after death:

  • Appearing in court as the representative of the estate (if needed)
  • Obtaining an EIN and creating an estate bank account.
  • Take an inventory of all estate assets, including personal and real property.
  • Managing and securing the estate’s property. This may include taking care of utilities and maintaining the home.
  • Paying of estate debts, which must be done before distributing any assets to heirs.
  • Distributing estate assets to heirs or beneficiaries.
Where Should You Start When Emptying A House After Probate?

As previously mentioned in the article, you cannot empty a house before probate is complete. However, you can take steps to make this process easier for you once the time comes.

You should start by changing the locks on the home. This is especially important if you’re unsure of how many people have access to the home. Keep in mind that just because the court doesn’t allow someone to empty the house before probate doesn’t mean that people will obey the court’s rules.

You can also put a forwarding address on your loved one’s mail. This can be done through USPS. If you skip this step and mail begins piling up, then it may look as if the home is unoccupied or vacant, making it easier for the home to be broken into.

You should continue paying any utility, home insurance, and home maintenance bills and cancel any unimportant bills like cable or magazine subscriptions.

You can clean the house after the probate is complete. However, be aware that this process can become tiring, emotional, and stressful, so take breaks if needed.

Below are a few steps to take to make this substantial task a bit more manageable:

1. Look For Important Documents

Some important documents you may need include the decedent’s Will, bank statements, any insurance, car titles, and more. These papers will help the probate process go more smoothly. Also, be sure to destroy any papers with sensitive information, such as your loved one’s social security number.

2. Organize The Home When Emptying A House After Probate

The best way to prepare for emptying the house is to organize it. You can begin sorting through the belongings without throwing anything out. You should begin by creating piles of items that are to be kept, sold, donated, or thrown out.

Creating a system will make the process less emotionally draining and more efficient for the family. If more than one person wants to take a specific item, then set it to the side and come to an agreement later to avoid any delays.

3. Hire An Appraiser

Hiring an appraiser will help your family decide what items may be good to sell and which may be a waste of time. For example, you individually may not be aware that your grandmother’s rug is an antique, but the appraiser will. This appraiser can also assist you in selling the item quickly, and they will be especially useful during the probate process when it comes time to do the estate’s inventory.

Even though you can’t clear the contents of your loved one’s home until the probate is done, you can still take a few steps to prepare for it.

How To Sell The Home

If you and your family decide to sell the home, you’re likely ready to list it once it has been cleared out. You should consider how much work everyone is willing to put into the home in order to get it listed. If you don’t have a ton of time or resources, you may choose to sell the home “as-is” and make a provision that no improvements or repairs will be made to the home.

You can also choose to put your time and money into the home and have it updated before selling it. This may allow you to sell it at the highest price possible.

Giving The House To Beneficiaries Or A Probate Home Sale?

You have two options when it comes to your deceased loved one’s home:

  1. Pass the home down to the decedent’s heirs
  2. Sell the home

If the decedent’s Will specifies that the home is to be passed down to someone specific, then the title can be transferred directly to that person. If there was no Will, the home goes to the decedent’s heirs according to Michigan’s intestate succession laws unless otherwise agreed to by the heirs. Whoever receives the home also takes on the mortgage payments, if any.

If no one was named in the Will to take the home, or no one wishes to take the home, then it will be sold. The sale of a home that is in probate is similar to a regular sale, but there are a few differences. First, anyone who works on the home, including realtors, will more than likely have to wait until the home sells to be paid. Secondly, the court may have to monitor or approve the sale of the home before any transaction can occur.

So, Can You Empty A House Before Probate?

If you recently lost a loved one, you may be wondering what to do with their home and its contents, especially if you don’t plan on keeping the home. Can you empty the house before probate, or should you wait?

Before you begin moving items around and selling them, the estate needs to go through the probate process if necessary. If you aren’t planning on selling the home, you should transfer the property to an heir, or sell the home to someone else.

Do I Need A Probate Lawyer To Help Me With Probate?

The probate process in Michigan can be complicated, long, and confusing.

At Rochester Law Center, our compassionate and dedicated Michigan Probate Lawyers are experienced in all matters of probate administration and serve every county in the state of Michigan.

We make probate fast, easy, and stress free by acting as your guide through the complicated paperwork and legal proceedings you’ll undoubtedly be facing throughout the Michigan probate process.

Our probate attorneys can help you quickly and easily navigate the process so that your loved one’s money and property can be distributed to their heirs in the manner in which they intended. 

We understand the intricacies and nuances involved with probating an estate and can help you navigate every step of the way while keeping costs as low as possible.

Call us today at (248) 613-0007 for a free case evaluation.

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