Probate
Definition
Probate is the legal process by which a deceased person's will is validated by the court and their estate is administered, including the transfer of real property to the named beneficiaries or heirs.
Example
After a homeowner passes away, her will names her daughter as executor. The daughter files the will with the probate court, which validates it. After debts and taxes are paid, the court authorizes the executor to sign a deed transferring the property to the beneficiary named in the will.
Exam Tip
An executor is named in the will; an administrator is appointed by the court when there is no will — this distinction is frequently tested. Remember that property held in joint tenancy with right of survivorship passes OUTSIDE of probate automatically to the surviving joint tenant.
Related Title Transfer Terms
Deed
A deed is a written legal document that conveys (transfers) ownership of real property from one party to another. It must be delivered to and accepted by the grantee to be effective.
General Warranty Deed
A general warranty deed provides the greatest protection to the grantee by guaranteeing that the grantor holds clear title and has the right to sell the property. It includes covenants that protect against all defects in title, even those arising before the grantor owned the property.
Special Warranty Deed
A special warranty deed guarantees that the grantor has not caused any title defects during their period of ownership, but does not warrant against defects that existed before the grantor acquired the property.
Quitclaim Deed
A quitclaim deed transfers whatever interest the grantor may have in a property without making any warranties or guarantees about the quality of title. It offers the least protection to the grantee.
Bargain and Sale Deed
A bargain and sale deed implies that the grantor holds title and possession of the property but does not include warranties against encumbrances or title defects.
Deed Requirements (Essential Elements)
For a deed to be valid, it must contain several essential elements including a competent grantor, identifiable grantee, consideration, legal description, granting clause, signature of the grantor, and delivery and acceptance.
Frequently Asked Questions
Test Your Title Transfer Knowledge
Practice with exam-style questions to make sure you can apply Probate and other title transfer concepts.