If my brother and I are sole beneficiaries in our father’s Will, can any assests be transferred prior to probate?

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If my brother and I are sole beneficiaries in our father’s Will, can any assests be transferred prior to probate?

His estate, which includes his house, has not yet been probated. My brother would like to buy my share of the house. Can the house title/deed be transferred into my brother’s name before probate? What are the advantages/disadvantages if any?

Asked on February 12, 2011 under Estate Planning, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

While you don't say so explicitly, from the context of  your question, it appears your father has already passed. If that's the case, then no--assets cannot be transferred before probate and they are distributed to the heirs. Until that happens, it's not your or your brother's house--you have an expection of getting it, but not actual ownership interest yet. You cannot transfer what you do not yet own. You and your brother can certainly contract that you will sell your share of the house once it is yours--but again, if the assets haven't been distributed yet per the will, it's not your share of the house.

If your father has not yet passed, there are many ways, with his concurrence, to transfer assets that he intends to leave to heirs in a way that may be more beneficial than by will. An estates attorney can help you with this.


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