For people who are serving as or helping the executor/personal representative of an estate, there’s a lot to do — funeral plans to fulfill, forms to file, assets to appraise… the list goes on and on.
Included in the long list of to-do items is the arduous and often painful process of sifting through the deceased’s personal belongings, determining where each item should go as it leaves the house.
And for many executors, the first instinct is to sell first, ask questions later. This often starts with the estate’s biggest asset — the house. And to sell a house, the executor needs to empty the house of the deceased’s belongings.
But… jumping straight to selling the house and having a big estate sale is where many executors expose themselves to dangerous liability.
Sure, you may want to give beneficiaries their inheritance and move on as fast as possible, but there are laws that govern how an estate must be dissolved.
Which leads us to our question…
Can You Empty a House Before Probate?
No. You should not empty a house before probate. There is an order to probate for a reason, and emptying a home prematurely can result in both personal and legal headaches.
And if you still feel lost about what you’re even responsible for, what probate really is, and whether or not you need a probate lawyer, this Probate Guide will make everything more clear.
Okay so why shouldn’t you empty a house before probate, specifically?
There are three main reasons:
Reason #1 You may need to take inventory first
First, the executor or personal representative usually has to make a complete inventory of all items within the house. That inventory needs to be comprehensive and should include everything within the house (yes, even the items in that annoying kitchen junk drawer).
The executor will be dividing the items into two main categories: probate & non-probate assets.
Read more: Probate vs. Non-Probate Assets: The Definitive Guide
In addition to including all the objects within the house, the inventory should serve as a beginning step in outlining which of the deceased’s belongings are to be distributed to relatives and loved ones, sold, donated, or thrown away. But keep in mind that creating an inventory is still many steps away from actually distributing, donating, or discarding those items.
Besides serving as an outline and record, why is taking an inventory so important? It all comes down to risk and liability.
The executor of the estate is expected to protect and preserve the estate’s assets. If anything is lost or stolen before or during the probate process, the executor could be held legally responsible for the loss of value to the estate.
And if you sell things prematurely, spend the money, and then realize that the estate owes a lot more to creditors than you realized, you may be responsible for paying that money back.
Reason #2 You may not have the right to get rid of certain items
The second reason as to why you shouldn’t empty a house before probate is because the contents of the house might already be deeded to specific relatives or loved ones.
The deceased individual may have wanted to avoid keepsakes, valuables, and memorabilia falling into just anyone’s hands — plus it’s likely that the deceased had specific intentions for some of their belongings, which could be outlined in their will.
And even if they didn’t have a will, intestacy laws (default laws that govern the distribution of someone’s stuff if they die without a will) can dictate who gets what.
So don’t begin removing items from the house without knowing if the items are supposed to be distributed in a certain manner!
Reason #3 You may not know the exact value of objects yet
The final reason preventing you from emptying items from the house before probate is because you likely don’t have complete knowledge of the value of each object. Sure, you might add that antique watch to your inventory and estimate that it’s worth $100, but are you really sure?
Appraising the value of household items takes time and often requires expert opinion. So don’t rush through that stack of baseball cards because you think they’re just old pieces of cardboard — they actually could be worth something.
Are there exceptions?
Now, I know what you’re thinking — what if a situation occurs where certain items or valuables in the house need to be removed prior to probate?
Although the rule that you should never remove items from the house before probate is set in stone, you might encounter rare exceptions.
For example, I once encountered a problem while working on an estate closing for a recently-deceased client. The problem was that the client had two Lamborghini's in his garage when he passed away. I know — it seems like a good problem to have.
But because the garage held other valuable items that needed to be inventoried, we couldn’t risk the possibility of accidentally damaging one of the vehicles.
While the rest of the objects in the garage were inventoried, the Lamborghini's were moved to a secure location so that they could remain protected. And in order to protect ourselves from liability, our team documented the decision to move the Lamborghini's from the garage.
You get the idea. Those instances where you might need to move an object from a house before probate are rare but not nonexistent. In all those instances, however, you should carefully document why you chose to move the item from the house.
Pro tip: don’t move any items on your own. If you’re the executor of the estate and you realize that you’ll need to remove an item from the home before probate, make sure you have witnesses to corroborate when and how that item was removed from the home. If you don’t have any witnesses and certain items end up being lost or damaged, you could be held liable for the loss of value to the estate.
What if you want to use something in a funeral or celebration of life?
If you’re planning a funeral or a celebration of life, it makes sense to bring along some memorabilia of your loved one. Maybe it’s a hat they refused to ever take off or their favorite car.
Regardless of what it is, and despite it being an extra hoop to jump through, go ahead and document whatever you move out of the house or estate that’s being probated.
Why? Because again, assuming you’re the executor, or the person in charge of dissolving someone’s estate , you could open yourself up to some financial drama if you move, sell, break, and/or misplace things of either monetary or personal significance.
So no matter how small the risk, it’s best to take extra precautions with moving anything the deceased owned before probate is wrapped up.
Here’s how to document what you do:
- Have a witness present
- Take pictures of what you’re moving with your phone
- Write down and date a list of the items, where you are moving them from, and for what purpose (in this case, the funeral).
We know it can feel a bit like overkill, but it's best to play it safe. If something goes missing a beneficiary could accuse you of pulling some strings and open up a world of arguments and maybe even lawsuits.
Alternatively, or even alongside, you could work with our good friends at LifeWeb360 to create a digital collection of memories that you can display at the Celebration of Life or print out in a book for everyone to thumb through.
When is the best time to dispose of the deceased’s belongings?
Now that we’ve established the rule that you should never empty a house before probate (with very few exceptions), then when should you?
As a rule of thumb: if you think it might be too early to dispose of the deceased’s belongings, then you’re probably right.
Although each state’s probate process is slightly different, every probate process has a “distribution period” where the estate has court approval to begin distributing or disposing of the deceased’s belongings.
This is the time when you will follow the directions of the deceased’s will by distributing certain items to specific relatives and loved ones, donating items to charity, and disposing or selling the belongings that are not needed.
It will be clear in the probate process when the distribution period is in effect, so you shouldn’t move ahead with distributions unless you are in that specific part of the process.
For a little more on this topic, you'll find these articles useful:
What to Do With Someone’s Stuff After They Die
What to Do When Someone Dies: 2022 Checklist