Helper, UT asked in Estate Planning, Real Estate Law and Probate for Utah

Q: My parents died 33 and 35 years ago. Do I still need to probate there home. I'm only child!

I want to sell there home no one has lived in in25 years!

3 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: Probate is the process that is used to retitle assets that are still in the name of a deceased person. In order to sell the home you will need to update the title so that it is in your name. A Utah probate attorney can help you with this process.

Kenneth Prigmore agrees with this answer

Kenneth Prigmore
Kenneth Prigmore
Answered
  • Estate Planning Lawyer
  • Spanish Fork, UT
  • Licensed in Utah

A: The answer depends on how they held the property. If they held it in a trust, the trust could easily still be running and if you were the Trustee, you could sell the home. Same for an LLC if you were the manager or sole member of the LLC.

If they held it in a Joint Tenancy with you, then after their deaths you would be considered the current owner.

If they held any other way, it will likely need a court order determining heirs, not exactly a probate, but you do it in probate court. It won't be hard to prove the property is yours if you are the only child, but you would still need the court order before you could sell the property.

Wesley Winsor agrees with this answer

Wesley Winsor
Wesley Winsor
PREMIUM
Answered
  • Estate Planning Lawyer
  • Saint George, UT
  • Licensed in Utah

A: Hello,

The short answer is yes, if their names are still on the title, yes you will need to invoke the power of the Court to transfer title. You can either have the Court declare that you are the title holder, or you can be appointed as personal representative to deal with the property and distribute the proceeds to yourself after selling it.

You will need deal with the appreciating issue for taxes though. You will get a stepped up basis as of the date of the last of your parents to die, but any appreciation in the property since that death, will be counted as long term capital gains to you when you sell. A good attorney or CPA can help you with the details of that though.

You can't file a normal probate action because too much time has elapsed (over 3 years) since their death, you will need to file what is called a Determination of Heirs proceeding. It runs much the same as a probate action. The good news is, if you are the only child and no other names are on title to the property, then you should be able to do this pretty quick.

I would advise speaking to a probate/estate planning attorney. I have seen these things get done in less than a month.

I hope this helps.

Wes

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