Who Owns a Probate Property: Heirs vs. the Estate?

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Who Owns Probate Property: Heirs vs. the Estate?

When a loved one passes away, real estate often becomes the most valuable—and most confusing—asset in the probate process. Families frequently ask: “Who really owns the property now—the heirs or the estate?”

The answer isn’t always straightforward. If you’re a personal representative, heir, beneficiary, or investor in Maryland, understanding this distinction is critical to avoid costly mistakes, delays, or disputes.

In this Estate Insight Blog, I’ll break down who owns a probate property, what rights heirs really have, and why the estate always takes precedence until the court says otherwise.

Step One: The Estate Owns First

The moment someone passes away, all of their assets become part of the estate. This includes real property such as the family home, vacation houses, or rental properties.

That means heirs do not immediately inherit property—even if they are named in a will. Instead, the estate is considered the temporary legal owner until the probate process is complete.

In Maryland, probate ensures:

Debts and taxes are paid.

The rightful heirs and beneficiaries are identified.

Assets (including property) are distributed properly.

👉 Bottom line: At the start, the estate—not the heirs—owns the property.

The Role of the Personal Representative

During probate, the personal representative (sometimes called executor or administrator) has authority over the estate’s assets.

Duties include:

Managing and maintaining the property.

Paying mortgages, taxes, and upkeep from estate funds.

Deciding (with court approval) whether to sell or transfer the property.

If you’re an investor or realtor in Maryland, this is the key person you need to work with—not the heirs.

When Do Heirs Gain Ownership?

Heirs or beneficiaries don’t officially own the property until:

The estate’s debts are settled.

The court authorizes distribution.

A deed is properly transferred into their names.

Until then, heirs may have a future interest, but they lack legal control. They cannot:

Sell the property.

Refinance or mortgage it.

Lease it out without court approval.

👉 Heirs often misunderstand this point, leading to conflicts with buyers, tenants, or even the court.

Special Situations to Consider

Not every property is required to go through probate. Ownership can be transferred outside of the estate, depending on how the property was titled.

Joint tenancy with right of survivorship: The surviving owner automatically inherits.

Tenants by the entirety (married couples in Maryland): The surviving spouse immediately owns the property.

Trust-owned property: If the deceased placed the property in a living trust, it bypasses probate completely.

Transfer-on-death deeds (not common in Maryland): Property passes directly to the named beneficiary.

These exceptions highlight why it’s critical to review the title and ownership documents before assuming heirs' inheritance.

Why This Matters for Buyers and Sellers

Whether you’re a personal representative trying to sell or an investor looking to buy, knowing who has legal authority saves time and money.

Common scenarios:

Investors: Offers must be made through the personal representative, not the heirs. Otherwise, the deal can collapse.

Heirs: Trying to sell too soon could be challenged by the court, creditors, or other heirs.

Agents/Brokers: Always verify “Letters of Administration” before listing a property.

📌 Pro Tip: In Maryland, real estate cannot be legally sold during probate unless approved by the Orphans’ Court or clearly authorized in the will.

Maryland-Specific Probate Insight

Here’s how it works in Maryland:

Probate is typically filed in the Orphans’ Court of the county where the deceased lived.

A personal representative has been appointed and will receive the Letters of Administration.

Only then can that representative handle the property—including listing, maintaining, or selling it.

Learn more about Maryland’s probate process here (Maryland Courts official site).

🎙 Want to Learn More?

This week on the Estate Insights Podcast, I go deeper into this topic with real-world stories of families who misunderstood probate ownership—and what it cost them.
👉 Listen to the episode here.

📰 Stay Updated Weekly

Each Friday, I share the Estate Insights Newsletter, where I recap the week’s blog and podcast, answer common probate questions, and give practical tips for heirs, personal representatives, and investors.
👉 Sign up here so you never miss a probate update.

Frequently Asked Questions

1. Do heirs automatically own property when someone dies?
No. The estate owns it until probate is settled and the court distributes assets.

2. Can heirs sell a property before probate closes?
Not legally. Only the personal representative, with court authority, can sell.

3. What happens if heirs disagree on selling the home?
The personal representative may need court approval to proceed. Heirs can contest, but the estate makes the decision.

4. How long does probate take in Maryland?
It varies, but often 6–12 months. Complex estates may take longer.

5. What if the deceased had no will?
Maryland intestacy laws determine which heirs inherit, but the estate retains ownership of the property during probate.

Final Insights...

So, who really owns probate property? Until the court closes probate, the answer is simple: the estate.

Heirs may eventually inherit, but they don’t have legal authority until the estate distributes the property. This distinction matters for personal representatives, heirs, attorneys, realtors, and investors alike.

If you’re navigating probate in Maryland, don’t make costly mistakes by assuming heirs can act too soon. Always check who the court has appointed to handle the estate.

📞 Need help with a probate property in Maryland?

I’m Fred Dorsey, a probate real estate broker specializing in guiding personal representatives, heirs, and attorneys through complex property matters.

Whether you’re selling, buying, or managing a probate home, I can help you move the estate forward with clarity and confidence.

📱 Contact me here to schedule a consultation.