Real property

What it means

The division between real and personal property runs through almost every rule about estates: which procedure applies, what a small-estate threshold counts, and which state's law governs.

Real property is governed by the law of the state where it sits, regardless of where the owner lived. That is why property in a second state usually needs its own proceeding.

Transfers of real property are recorded in a public register kept where the land is.

Why it matters

It is a frequent reason a simplified procedure is unavailable: many states allow a small-estate affidavit for personal property only, so a house forces the full process.

It is also why a family with a holiday home in another state ends up with two probates rather than one.

When you are likely to meet it

• When deciding which procedure an estate needs.
• When property is owned in more than one state.
• When a small-estate threshold is being measured.

How this varies by state

Whether real property counts toward a small-estate threshold, and whether it may pass by affidavit at all, are set by state law.

Related terms

• Affidavit of heirshipA sworn statement of who a person's heirs are, recorded in the land records where no probate established it.
• Age-restricted communityA neighborhood that may lawfully require residents to be over a certain age, usually 55 or 62.
• Ancillary probateA second, smaller probate in another state, for property located there.
• Assessed valueWhat a taxing authority says a property is worth, which is rarely what it would sell for.
• Bona fide purchaserSomebody who buys property for value, in good faith, without notice of anyone else's claim to it. The law usually protects them, even against the rightful owner.
• Community development districtA local government unit that funds a community's infrastructure and bills residents for it, separately from the association.
• DeedThe recorded document that says who owns a piece of real property, and how they hold it.
• DomicileThe one state a person legally belongs to, where they intend to remain. It decides where the estate is administered and which state's law governs their personal property.
• Force-placed insuranceHazard cover a mortgage servicer buys for a property when the owner's policy lapses, and charges to the loan.
• Homeowners associationThe body that enforces a neighborhood's rules and collects its dues, with real power over the property.
• Homestead exemptionA protection for the family home — from creditors, from being sold to pay debts, or as a right for the surviving spouse to keep living there.
• Intangible personal propertyProperty with value but no physical form — bank accounts, shares, policies, pensions, patents, a debt somebody owes.
• Life estateAn arrangement where one person has the right to use property for their lifetime, and somebody else automatically owns it afterwards.
• Naked ownershipOwning something in Louisiana that somebody else has the right to use.
• Partition actionA court case brought by one co-owner to divide property, or force its sale, when the owners cannot agree.
• Probate assetSomething owned in the deceased person's name alone, with nobody named to receive it.
• Property tax saleThe process by which a county sells a property, or a lien on it, because the property taxes went unpaid.
• Quiet title actionA court case asking a judge to decide, once and for all, who owns a piece of property.
• Quitclaim deedA deed transferring whatever interest the signer has, with no promise that they have any.
• RecordingFiling a document with the county so that it is on the public record.
• Right of redemptionA period after a tax or foreclosure sale during which somebody with an interest in the property can pay what is owed and get it back.
• Small-estate affidavitA sworn statement a state allows instead of a full probate case for an estate under its ceiling. What it is called, what it reaches and whether a court is involved differ by state.
• Successor in interestSomebody who receives an interest in a mortgaged home from a borrower who died, and gains the borrower's rights.
• Tangible personal propertyThings you can touch and move — furniture, jewellery, tools, a car, the contents of a house. Not land, and not accounts or shares.
• Title insuranceCover against defects in ownership that already existed when the property was bought.
• Transfer-on-death deedA recorded deed naming who receives real property on death, with no probate and no present interest for the person named.
• UsufructA Louisiana right to use property and take its income, while somebody else owns it.
• Vacant and unoccupiedTwo words an insurer uses differently, and the difference can void the cover on an empty house after a death.

Sahvelo guidance that uses this

• Do I need probate?
• Inheriting a mortgaged home