Do I need to probate my sibling’s will? We owned property together. I want to know how to transfer their share to my name.
My sibling passed away. They named me as executor in their will. We had a great relationship. The two of us owned a vacation home together. Does the property just belong to me now? Or do I have to apply for probate to get my sibling’s share of the home?
Probate is a legal process that confirms a will is legally valid. It allows banks and others to know they’re handing the deceased’s assets over to the right people.
Whether or not a will needs to be probated depends on a few factors.
One is how the deceased owned their assets. Any assets they owned jointly with others usually pass directly to the surviving joint owner(s). This property is said to pass outside the will. A common example is real property held in joint tenancy. Joint tenancy is a type of ownership where the owners share an identical undivided interest in the property. Usually, when a joint tenant dies, their interest passes automatically to the other joint owner(s). You don’t need a grant of probate to formalize this. Instead, you need to file a death certificate and some paperwork with the land title office.
The tricky thing with real property, though, is there is a second type of joint ownership. It’s called a tenancy-in-common. Here, the owners’ interests are separate. When one of the owners dies, their share of the property becomes part of their estate. It doesn’t automatically go to the other owner(s). The deceased’s share of the property, along with the rest of the estate, must be distributed as the will instructs. And the land title office will ask to see a grant of probate in order to transfer the title from the deceased to someone else. If this is your situation, here is a guide on applying for probate.
If you’re not sure how you and your sibling owned the vacation home together, you can look at the state of title certificate. The title certificate might say that the property is held in joint tenancy. If it doesn’t, then the property is assumed to be held by the owners as tenants-in-common.