Removing Items Before Probate: Can You Empty a Probate House?

If you’re inheriting a home or are the administrator of an estate that includes a home, the matter of can you empty a house before probate may be on your mind. The truth is that laws on the topic are complicated.

Removing items before probate is complete must be done in accordance with state laws, which makes having a better understanding of these laws – as addressed below – to your advantage.

Can you empty a house before probate?

Losing a loved one is a painful process, and when there’s a house involved, you may have an urge to collect a few mementos before the probate process begins. In the State of California, however, neither the administrator of the estate nor the heirs of the deceased can empty a house prior to probate.

The bottom line is that you may be taking items of value, or of sentimental value, that your loved one left to someone else in their will – or that another beneficiary would also like to own. Before any assets can be removed from the home, it’s generally necessary to handle the probate process.

The only time you can remove items from the house of a loved one before probate is complete is when probate isn’t required at all, such as when one of the following applies:

• When the house is in a living trust with an appointed trustee, which allows it to bypass the probate process
• When the house has a transfer on death deed – also known as a beneficiary deed – that transfers ownership directly
• If you had joint ownership of the home with the deceased, which automatically makes you the sole owner upon their death
• If the house is community property, which means that the deceased was your spouse and that you likely have the legal right of survivorship 

California is focused on protecting the best interests of the estate, and they employ complicated laws to get the job done.

Removing items before probate: Is it advisable?

Removing items from your loved one’s home before probate has been completed is never advisable. The law is designed to protect the assets of the deceased, to ensure the wishes of the deceased are upheld, and to protect the inheritance rights of the deceased’s heirs. Before belongings are to be distributed, administrators must wait until the probate process is finalized.

If you jump the gun by removing items from the home of the deceased before the probate process is complete, you could find yourself on the wrong side of the law. Waiting for probate to end gives family members the time they need to come to terms with their immense loss, and it may help you avoid the emotional dustups that are not uncommon when dealing with the death of a loved one and the division of property that comes with it.

The fact is that taking your pick of the contents of the house might interfere with the inheritance rights of other beneficiaries and doesn’t prioritize the estate’s value or the wishes of the deceased. The State of California carefully protects the property rights of individuals, which includes forbidding any unfair advantage in relation to probate property.  

Removing items from house after death (no will)

When it comes to the executor removing items from the estate of someone who has no will, they’re required to follow California’s laws of intestacy, which means the laws that guide inheritance in the state. When there is no will, California determines who is in line to inherit – and in what order – and the executor, or the personal representative, is legally bound to distribute assets according to these laws. 

When there is no will, the house is likely to become the property of the deceased’s closest heirs, which often means their children. When a spouse survives the family member, the matter of the home is generally far less complicated. If you and other family members inherit a home together, you have two basic options regarding the contents of the house after the probate process is complete, including:

• You can divide the contents of the home between you according to mutual agreement and can proceed to either sell the home or maintain joint ownership.
• If the home needs to be auctioned in order to address the debts of the deceased or if you and the other beneficiaries can’t reach a mutually acceptable agreement, you can each bid on the items you’re interested in owning at the estate sale. 

Removing items from house after death (with will)

If the deceased had a will at the time of their death, the executor must ensure that their wishes are carried out – after their debts and bills are taken care of. Once probate has been resolved, the executor of the estate will proceed to distribute personal property according to the wishes of the deceased.  

If you and other family members inherit a home and its contents together, you have the same options as above. You can negotiate a division of the home’s contents between you, while owning the home jointly or selling it. If you can’t, however, reach an agreement regarding the home’s contents, an auction may be in order.

What can you do before probate is granted?

While you can’t begin distributing items from your loved one’s house while it’s in the probate process, there are steps you, as the administrator, can take to help protect everyone’s inheritance rights, to help protect valuable and sentimental items in the home, and to help protect the property itself. 

You can start by changing the locks on the house. After the death of a loved one, you may not know how many keys to their home are out there, which makes changing the locks a wise move. And even though the law prohibits heirs from emptying a house before probate is complete, there are no guarantees that these regulations will be respected. 

Another step you can take to help make the probate process less challenging is by forwarding the mail of the deceased to your home address – rather than allowing it to pile up on the property. This can easily be resolved through the USPS, and it’s one of those details that can make a significant difference.

Additional administrative tasks to consider include cancelling any subscriptions, such as publications, and nonessential utilities like internet service and movie channels. On the flip side of this is ensuring that matters like house insurance and home maintenance are adequately addressed. 

Can personal possessions be distributed before probate?

Personal possessions in a home can only be distributed prior to probate’s end if the house itself or the possessions themselves are not subject to probate. This generally means being in a trust or having a transfer on death deed. Otherwise, the personal possessions can’t be distributed to heirs until the property has made its way through the probate process. 

Do household items go through probate?

Household items do go through probate, and the division of these household items takes time. If the house is in probate, you can’t remove household items from the property until the probate is complete – unless the household items themselves were addressed in a trust.

Beneficiaries often find it difficult to work through this process before divvying up household items – many of which may have very little value. California, however, is invested in protecting the overall value of the assets, and as such, they take proactive steps on behalf of the estate. 

Can you sell a deceased person’s house without probate?

Selling a house in probate is possible in California, but it involves the administrator petitioning the probate court to sell real estate. From here, all the following steps must be taken:

• Specifying whether you’ll be selling the house on the open market or at auction
• Submitting an independent appraisal of the property
• Obtaining the court’s permission to sell
• Putting the house up for sale at a price that’s considered fair
• Petitioning the court to confirm the sale you’ve arranged
• Securing at least a 10 percent deposit from the buyer before the scheduled probate hearing
• Advertising the sale in a local newspaper, which triggers open bidding by any interested parties at the probate hearing 

Ultimately, the probate home sale process requires the permission of the court and may be supervised. The court’s goal is obtaining the best price for the home. When it comes to selling a deceased relative’s property, having an experienced probate attorney in your corner tends to be advantageous. 

Can an executor sell a house before probate?

The executor can sell a house before probate is finalized only when the following apply:

• All the beneficiaries – or the heirs of the deceased – are notified of the sale at least 15 days before it takes place.
• None of the beneficiaries object to the sale

Under these circumstances, the executor can proceed with the sale of a property before probate is complete. The court, however, will need to sign off on the sale. 

Consequences of removing or selling items before probate

Removing any valuable or personal items from the home before probate has run its course can leave you legally responsible. If you are the executor or personal representative of someone’s estate, real estate laws require you to protect the value of the estate, the contents of the house, and the interests of the beneficiaries – all while you wait until the probate process is finalized.  

Inventorying assets 

While you can’t remove or sell items from a home that is entering probate, you can take steps to get it ready to sell either during or following probate. An important part of this process involves making a complete inventory of the belongings inside the home. This inventory needs to be comprehensive in order to protect yourself as the estate administrator as well as to protect the estate itself.

Addressing the house prior to sale  

if you will be selling the house prior to probate’s completion – whether the sale proceeds through the court or as a result of agreement by the beneficiaries– putting some careful thought into the matter will facilitate the sale process. Two key considerations include:

• You should pay special attention to important documents in the home, including financial papers, insurance policies, estate planning documents, photographs, letters, and beyond.
• Hiring an appraiser is a good way to ensure you know the value of the home’s contents, which matters when the deceased had no will. This includes putting a value on vintage items or art pieces, which can play an important role in how they are ultimately distributed – or sold.