Can Probate Property Be Rented Out?

By Christine Funk, J.D.

Can Probate Property Be Rented Out?

By Christine Funk, J.D.

Probate refers to the legal process property must go through to pass from a deceased person's estate to their heirs in cases where people pass away with or without a will to facilitate the transfer of their property. When someone utilizes a revocable living trust rather than a will, they avoid probate.

Man wearing glasses holding paperwork

The short answer to the question "Can probate property be rented out?" is "yes" as no state prohibits it. But, as with most aspects of estate planning, the circumstances in which this is feasible and beneficial vary.

Starting Probate

After a property owner passes away with or without a will to transfer their property to their heirs, the case must go through probate court. At the beginning of the probate process, the court appoints an executor. The executor is responsible for managing the deceased's affairs during the probate process. If a will exists and the designated executor expresses willingness, courts most often rely on that person.

However, if the named executor no longer wishes to serve or is otherwise unavailable, courts appoint someone else to the task. Similarly, in cases without a will, courts appoint an executor.

Previously Established Rental Property

If the person who passed away was already renting out a property, this situation continues. The lease signed by the now deceased landlord and the tenants occupying the property remains in full force and effect. If the lease expires while the property is still in probate, the executor bears the responsibility of deciding whether continuing the rental status of the property remains consistent with the best interests of the estate.

An executor must consider a number of factors when making that decision. These factors include whether the person who passed away has debts that cannot be paid without selling the rental property, whether the will designated a specific person to inherit the rental property, and other case-specific factors.

Property Not Rented at the Time of Death

One of the executor's responsibilities includes paying the deceased's bills during the probate process. Depending on a person's financial situation, an executor may find this difficult or impossible. Renting out the residence of the deceased may prove a perfect solution.

An executor has the authority to act on behalf of the estate. However, the extent of the authority of the executor varies by state. In some states, executors may rent out a property under the state's probate laws. In other states, an executor must seek permission from the court. However, there is nothing in the law that specifically prohibits renting out property while it works its way through the probate process.

Other Ways to Transfer Property Upon Death

For people who don't wish to have their property go through probate, which can take months or even years, there are other options. For example, one can use a revocable living trust to identify who receives what property upon the person's passing. Another way to transfer property without probate involves identifying applicable state law and using the title of the property to effectuate a transfer upon death.

If you are unsure how to handle your property when you pass away, consider consulting with an estate attorney or an online service provider for assistance. Leaving clear instructions gives your loved ones peace of mind.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.