Who Really Owns a House During Probate?
Grief is heavy, and then the questions hit, like who owns Mom’s house once the will goes to court. Titles, deeds, and family promises can point in different directions, which leaves people nervous about making a wrong move.
At Foust & Foust, PLLC, we focus on estate planning, probate, and trust administration for families in Tennessee. Our goal here is simple: to explain who owns a house while probate is open and how that home is transferred correctly.
Factors Influencing Property Ownership During Probate
Several moving parts control who ends up with the house. The most common are the will, how the deed is titled, and state rules that provide extra protection or expedite certain situations.
The Will (or Lack Thereof)
A valid will directs who receives the real estate and grants power to an executor, also known as a personal representative, in Tennessee. If there is no will, or the will is revoked, Tennessee intestate succession determines who inherits, typically a spouse and children in predetermined shares. That can differ from what the family expected, which is why precise planning is invaluable.
Type of Property Ownership
Deed language often determines what is exempt from probate and what is not. Sole ownership typically passes to the estate, then to the beneficiary by will or intestacy. Tenancy by the entirety between married spouses is common in Tennessee, and the survivor takes full ownership outside of probate, unless the deed states otherwise.
Joint tenancy with right of survivorship also bypasses probate, since the surviving joint owner takes full title at death. Tenancy in common is different; each owner’s share goes into that person’s estate, then through probate.
Table: Homeownership form and what happens at death in Tennessee
| Ownership form | Who takes after death | Probate involved | Notes for Tennessee |
| Sole ownership | Heirs or beneficiaries of the estate | Yes | Controlled by will or intestacy |
| Tenancy by the entirety | Surviving spouse | No | The default for many married couples is real estate |
| Joint tenancy with right of survivorship | Surviving joint owner | No | Must be clearly created in the deed |
| Tenancy in common | Estate of the deceased owner | Yes | Share passes through probate |
| Living trust ownership | Named trust beneficiaries | No | Handled by the successor trustee |
State Laws and Agreements
Tennessee is not a community property state, so a spouse does not automatically own half of every asset. That said, Tennessee allows married couples to opt into a community property trust, which can affect how assets are treated for tax and planning purposes. Tennessee has not adopted the Uniform Probate Code in its entirety; however, it does offer simplified procedures and other tools that can streamline certain estate matters.
Potential Disputes
Conflicts arise, from will contests to disputes over the true meaning of a deed. These can delay a transfer, raise costs, and even force a sale if debts need to be paid. Early, calm communication helps, and clear court orders keep things moving when opinions clash.
Process of Transferring Property Ownership in Probate
Transferring real estate through a Tennessee estate usually follows a set path. The personal representative’s job is to collect, protect, and then distribute assets once the court grants permission.
- Open the estate, gather assets, and give notice to creditors and heirs.
- Submit the will to the court for validation, if one exists.
- Pay valid debts, expenses, and taxes from estate funds.
- Distribute the remaining assets under the will or intestacy rules.
- File a final accounting for the court’s approval.
- Record deeds or other transfer documents to place the title in the new owner’s name.
In Tennessee, selling real property often requires either authority in the will or a court order. If the house must be sold to pay debts, the court can approve that sale to protect creditors and the heirs who remain.
Complications in Probate Property Ownership
Even a simple estate can encounter issues. Below are common snags we see with houses in probate.
- Challenges to the will or to instructions about the house.
- Heirs disagree over who lives there, who pays what, or whether to sell the property.
- Estate debts exceed the available cash, necessitating the sale of the home.
- Title defects, old liens, or tax issues can slow the closing process.
Good records, prompt action on upkeep, and early court requests often prevent minor problems from escalating into major issues.
Protecting Your Property Rights During Probate
A strong estate plan saves time and drama for real estate, which often means a clear will plus beneficiary designations for non-probate assets, or a living trust to hold title.
Trusts can keep the home out of probate, which reduces delays and helps with privacy. If you already face a probate, talk with a Tennessee probate attorney who can spot risks, line up approvals, and protect your stake.
Can You Live in a House During Probate?
Often, yes, especially for a surviving spouse or someone who lived there with the deceased. The personal representative determines what is best for the estate and can request the court’s assistance if necessary. The will’s language, the deed, and Tennessee law all play a role.
Living in the home usually comes with ongoing bills. Expect to cover, or reimburse the estate for, things like these:
- Mortgage, property taxes, insurance, and utilities.
- Basic maintenance to protect the home’s value.
- Use and occupancy fees, if required by the court or personal representative.
Get any agreement in writing, including who pays what and whether any payments will be credited later. Clarity now avoids fights later.
Avoiding Probate for Real Estate
Several tools can remove a house from the probate process. The right choice depends on family goals, creditor concerns, and tax planning.
- Joint ownership with rights of survivorship or tenancy by the entirety for married couples.
- Revocable living trust with an appropriately titled deed into the trust.
- Transfer-on-death deeds are not recognized for Tennessee real estate at this time.
Each option has trade-offs in terms of control, creditor exposure, and taxes. A short review now can spare your family a long court file later.
Do All Heirs Have to Agree to Sell Property?
It is nice when everyone agrees, but that is not always required. If a court-appointed personal representative has the authority to sell, they can request that the court approve a sale that serves the best interests of the estate. If multiple heirs hold title outside the estate and cannot agree, a partition case or similar court proceeding can decide the outcome.
Using a neutral personal representative can lower the temperature. Clear notices and fair listing practices help, too.
How Real Property in an Estate Is Treated During Probate
If a will describes who receives the home, the personal representative follows that instruction once debts and expenses are covered. Without a will, the court appoints an administrator, and then the property is distributed to the heirs under Tennessee intestacy laws. Spouses, children, and close relatives are first in line under that statute.
Someone still has to keep the lights on. Mortgage payments, taxes, insurance, and repairs should be handled to avoid loss in value, and the court can approve reimbursements to the person who fronted those costs.
Have Questions About Probate? Contact Foust & Foust, PLLC, Today
Every family story is different, and your plan should fit your life. At Foust & Foust, PLLC, we provide clear answers and steady support for Tennessee probate and planning. Please call us at (865) 203-4041, email contact@foustlaw.com, or use our Contact Us page to schedule a conversation. We welcome your questions and work hard to secure results that make sense for you and your family.
