Before an inherited house is listed, the family needs to establish who has authority to sell and deliver title. The current deed, any trust and the estate's status determine which process applies.
When a home may pass outside probate
If the house was held with survivorship rights, or in a trust, or under a transfer on death deed recorded before the owner died, it passes outside probate and the surviving owner, trustee or beneficiary can sell it. If it was in the owner's name alone, the heirs own it at the moment of death, but the record still has to show it. Indiana has a route for that outside probate: an affidavit recorded under IC 29-1-7-23 that is prima facie evidence title passed to the heirs. Whether a title company will insure a sale on that affidavit, and when, is the question to settle before listing.
Who owns it the moment somebody dies
IC 29-1-7-23 is the section that catches people out. It says that "When a person dies, the person's real and personal property passes to persons to whom it is devised," and by intestate succession where there is no will disposing of it. So the heirs do own the house on paper, straight away, which is why families assume they can sell it.
The rest of subsection (a) is why that is not the end of it. That property passes subject to the personal representative's right of possession and to a surviving spouse's right of election, and it stays "chargeable with the expenses of administering the estate." Owning it and being able to deliver clean title to a buyer are two different things, and a title company will want the second one.
The affidavit that records the heirs' title
Subsections (b) through (f) of the same section let a person sign and record an affidavit naming the decedent and the date of death, the deed that gave the decedent the house, its legal description, and the heirs or devisees and how each share passed. The county auditor endorses it and puts the heirs' names on the tax duplicate, and the recorder records it as the most recent instrument in the chain.
Anyone may rely on it, made in good faith, as prima facie evidence that the title passed to the people it names. Once seven months have passed since the death, with no letters issued within the time limits in IC 29-1-7-15.1, anyone may also rely on it as evidence that an executor or administrator cannot sell the house to pay debts that are not liens of record or to pay administration costs.
Prima facie evidence is evidence, not a guarantee. The title company decides whether it will insure a sale on the affidavit, and a probate attorney should draft it.
What the small estate affidavit does, and does not, cover
This is the one everybody has heard of, usually as "the hundred thousand dollar rule." IC 29-1-8-1 allows payment or delivery of a decedent's property on an affidavit forty-five days after the death, where the value of the gross probate estate is under a ceiling that the statute sets at "one hundred thousand dollars ($100,000), for the estate of an individual who dies after June 30, 2022." The affidavit has to state that "forty-five (45) days have elapsed since the death of the decedent."
Read at its source, that section is about payment, delivery and transfer: accounts, a vehicle or watercraft, securities, an insurance death benefit, a safe deposit box, a digital asset. It does not set out a way to transfer title to real estate. The valuation test counts "the value of the gross probate estate, wherever located," so a house can certainly push an estate over the ceiling, but the section is not a mechanism for conveying one.
If somebody has told you the small estate affidavit will get the house sold, ask them which subsection says so. The affidavit that deals with a house is the devolution affidavit above.
The deed that does work, if it was recorded in time
A transfer on death deed is the clean route, and the whole of it turns on timing. IC 32-17-14-5 says a transfer on death transfer "is not considered testamentary" and "is not subject to the requirements for a will or for probating a will under IC 29-1." Under IC 32-17-14-11 the deed must be "recorded with the recorder of deeds" in the county where the property sits "before the death of the owner," and a deed not recorded before that death "is void." There is no late filing.
We have a separate note on how those deeds work and where they go wrong.
Outside probate is not outside the creditors
Two provisions are worth knowing before anyone assumes a transfer on death deed ends the conversation. IC 32-17-14-29 says the chapter "does not limit the rights of an owner's creditors against beneficiaries and other transferees" available under other Indiana law, and sends a beneficiary's liability for creditor claims and statutory allowances to IC 32-17-13. And IC 32-17-14-26 provides that until a required affidavit is recorded, the beneficiaries and the deceased owner's estate "are jointly and severally liable for property taxes" on the real property.
A title company reads both of those.
The clock nobody mentions
If the estate route is the one you are on, waiting costs something specific. IC 29-1-7-15.1 bars an executor or administrator from selling Indiana real property to pay debts that are not liens of record in that county, or to pay administration costs, unless a petition for administration is filed within five months of the death and letters issue within seven months. That is a five month clock that starts at the death and that most families do not know is running.
Indiana's unsupervised-administration provisions describe powers a personal representative can exercise without a separate court order for each step. The estate's attorney should establish whether that route applies; the linked article discusses it further.
A probate attorney should establish the applicable process, the deed's effect, any surviving spouse's rights and the proper filing location. The CPA handles basis and gain. Resolve the authority and title requirements before committing to a closing timetable.
How a listing runs covers the rest.
Sources, read at the Indiana Code on 2026-10-11: IC 29-1-7-23, devolution, formerly Acts 1953, c.112, s.723, as amended through P.L.181-2025, SEC.9; IC 29-1-8-1, small estates, as amended through P.L.151-2022, SEC.1; IC 29-1-7-15.1, as amended through P.L.38-2023, SEC.2; IC 32-17-14-5, as added by P.L.143-2009, SEC.41; IC 32-17-14-11, as amended through P.L.6-2025, SEC.2; IC 32-17-14-26, as amended through P.L.2-2024, SEC.3; and IC 32-17-14-29, as added by P.L.143-2009, SEC.41. IC 29-1-7-23(b) through (f), the devolution affidavit, read at law.justia.com on October 27, 2026.
This note is general. It is not legal advice and it is not a reading of any estate. Whether probate is required in your family's case is a question for an attorney.