Does real estate always require probate?

Not always. If the property was held as joint tenants with right of survivorship, it passes automatically to the surviving owner. Property in a trust also avoids probate. But solely-owned real estate almost always requires court involvement to transfer clear title [§ 30-2-401].

Can the executor sell the house before probate is finished?

The executor needs [def:letters testamentary|Letters Testamentary] or [def:letters of administration|Letters of Administration] [§ 30-1-201] before they have authority to sign on behalf of the estate. Some wills grant independent selling authority; otherwise, court approval may be needed [§ 30-2-401].

What happens if the mortgage is still being paid?

Mortgage payments must continue during probate to avoid foreclosure. The personal representative can use estate funds for this [§ 30-2-101]. Federal law (the Garn-St. Germain Act) prevents lenders from calling the loan due solely because of an inheritance transfer [§ 12 U.S.C. § 1701j-3].

Can someone list or sell the property immediately?

Only if they already have legal authority to act for the estate. Listing before obtaining Letters [§ 30-1-201] can create complications. A real estate attorney can confirm whether authority exists.

Topic guideUpdated 2026-02-27

Tennessee Probate & Real Estate Transfers

How real property complicates probate in Tennessee — title issues, authority to sell, and common delays.

Real estate adds complexity to a probate estate. Unlike bank accounts that can be retitled with paperwork, real property requires clear legal authority, title work, and sometimes court approval before it can be sold or transferred.

When real estate goes through probate

Property titled solely in the deceased person's name
Property held as tenants in common (each owner's share passes through their estate)
Property with no survivorship language in the deed

When real estate bypasses probate

Joint tenancy with right of survivorship (title passes automatically)
Property held in a living trust
Property with a transfer-on-death deed (where available)

💡The distinction depends entirely on how the deed was written. Even family members who have lived in the home for years may need probate authority if the title was solely in the deceased person's name.

Authority to act §30-2-401

Before the Personal representative can sell, transfer, rent, or mortgage estate real property, they need Letters from the court §30-1-201. Some wills grant the Executor independent authority to sell without further court approval; in other cases, the personal representative must petition the court before listing. Federal law (the Garn-St. Germain Act) prevents lenders from calling a mortgage due solely because of an inheritance transfer §12 U.S.C. § 1701j-3.

Common complications

Title defects discovered during a title search (missing signatures, old liens, boundary disputes)
Multiple heirs who disagree about whether to sell or keep the property
Property that needs repairs or maintenance during probate (costs come from the estate)
Tenants in the property whose leases must be honored
Outstanding mortgage, tax liens, or homeowners association dues that must be resolved at closing

⚠If the estate includes real property and you are the personal representative, do not sign any contracts, listing agreements, or deeds until you have confirmed your legal authority. Acting without proper authority can create personal liability and cloud the title.

Prepare for Your Consultation

Quick checklist (Probate)

You can start the intake without all of these.

Death certificate

(copy)

Will or trust docs

(if any)

Basic asset list

(accounts / property)

General preparation tips only. Requirements vary by case and county.

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