Title and closing

Closing a deal with a seller who has an unprobated will

When you are under contract with a seller who has an unprobated will, you need to understand that the legal ownership of the property has not yet been formally transferred. This means the seller may not have clear legal authority to convey the title without proper probate proceedings.

October 10, 2026 · 3 min read

Understanding the problem of an unprobated will

An unprobated will means the deceased homeowner's wishes, while documented, have not been legally validated by a court. Until the will goes through probate, the executor named in it does not have the legal authority to sell the property.

This situation complicates your deal because the title company cannot issue clear title insurance to your buyer. Without clear title, you cannot close, and your assignment or double close will fall apart.

First steps: confirm the situation and get legal counsel

As soon as you discover an unprobated will, confirm the facts with the seller. Ask for a copy of the will and any related death certificates or court documents.

Your next move should be to consult with a real estate attorney who specializes in probate in your state. He or she can advise you on the specific requirements and timelines for probate in that jurisdiction. This is not legal advice, and you should always consult an attorney.

Assessing the probate timeline and complexity

Probate can be a lengthy process, varying significantly by state and even county. Simple probates might take a few months, while complex ones, especially with disputes among heirs, can take a year or more.

Your attorney can help you estimate a realistic timeline. This estimate is crucial for determining if the deal remains viable for your investment strategy, as long delays can tie up capital and resources.

Options for the seller to clear title

The most straightforward path is for the seller to initiate probate proceedings. This typically involves filing the will with the probate court and having an executor appointed.

In some states, there are simplified probate procedures for smaller estates or situations where all heirs agree. Your attorney can explore these options to potentially expedite the process.

Working with the seller through the probate process

You can offer to help the seller navigate the probate process by connecting him or her with reputable probate attorneys. Sometimes, sellers are overwhelmed and just need a clear path forward.

Consider offering to cover some of the initial probate costs, which can be recouped at closing. This small investment can demonstrate your commitment and help the seller overcome a hurdle to getting the property to market.

Contingencies and protecting your interest

If you decide to proceed, ensure your purchase agreement includes clear contingencies regarding the successful completion of probate and the seller's ability to deliver clear title. These clauses protect your earnest money and time.

Be prepared for potential delays or even the deal falling through if probate becomes too complex or contentious. It is wise to have a backup plan or other leads in your pipeline. For more on managing your leads, see /how-to-work-your-leads.

Questions people ask

Can I close without the will being probated?

Generally, no. A title company will require a legally appointed executor with authority to sell the property, which only comes through the probate process. Without probate, there is a cloud on the title.

How long does probate usually take?

The timeline varies greatly by state and the complexity of the estate. It can range from a few months for simple, uncontested cases to over a year for more complicated ones, especially if there are disputes among heirs.

Will this cost me extra money?

It can. While the seller typically bears the probate costs, delays can mean extended holding costs or opportunity costs for you. You might also choose to contribute to probate fees to help the deal move forward.

What if the seller doesn't want to go through probate?

If the seller is unwilling to probate the will, you will likely not be able to close the deal. The legal chain of title needs to be established before a property can be legally transferred. You may need to walk away at that point.