Understanding the Process 

When faced with the task of managing an estate, one of the most intricate and significant responsibilities is often the sale of real estate. While this might appear straightforward at first glance, it encompasses numerous legal and procedural nuances that require careful consideration. This blog aims to provide a clear roadmap for personal representative and heirs alike.

The Role of the Personal Representative

In instances where the decedent has left a will, the personal representative (the individual designated to manage the estate) is typically granted the authority to sell real estate. This provision significantly streamlines the process. However, in scenarios where the decedent passed away intestate (without a will), or if the will does not explicitly grant such authority, the personal representative must seek court approval before proceeding with any real estate transactions.

Selling Personal Property vs. Real Estate

Generally, the sale of personal property does not necessitate court orders unless the will specifies otherwise. However, the sale of real estate is subject to more stringent regulations. A petition must be filed to approve the sale, and notice must be given to interested parties unless there is unanimous consent.

Mortgage and Sale of Real Estate

If the will explicitly authorizes the personal representative to mortgage the real estate, they can proceed without court approval. In the absence of such authorization, court approval becomes mandatory. The clarity of the will regarding the personal representative’s power to sell is crucial; any ambiguity can lead to judicial denial of this power.

When seeking court approval for a sale, several key factors are evaluated, including the sale price, good faith action, and any potential issues surrounding the sale. The will may also outline specific terms for real estate sales, subject to court approval.

Public vs. Private Sales

Personal representative may buy or sell real estate on behalf of the estate without court intervention if permitted by the decedent’s contracts. Public sales (e.g. auctions) of real estate require specific order details such as time, place, and notice, while private sales (e.g. using a realtor) necessitate order specifications of price and terms. These orders may authorize or confirm sales already conducted, and sales deemed necessary to settle debts, taxes, or other obligations are categorized as necessity sales.

Conveyance of Real Estate

When a personal representative conveys real estate, it results in a special warranty deed, which protects them from personal liability for errors in the transaction. Adhering to appropriate procedures ensures that the personal representative is protected. Buyers who purchase real estate from personal representatives in good faith are protected even if procedural errors occur.

Be Careful of Conflict of Interests

Transactions that benefit the estate or the personal representative can be authorized by the will but may be voidable if they conflict with the personal representative’s interests. Interested parties have the right to challenge these transactions under fair disclosure conditions. Court approval remains necessary even with unanimous agreement among interested parties to protect the personal representative from potential future criticisms.

Required Documentation

Selling property within an estate requires meticulous attention to procedural details and correct application of received prices. Essential documents for testate estates (those with a will) include the will, probate admission order, administration letters, and federal estate tax clearance. Intestate estates (those without a will) require a petition for administration letters, administration letters, federal estate tax clearance, and a sale order. Certified Copies of these documents should be maintained in the property’s county unless probate administration occurs there.

Exempt and Specifically Devised Properties

Exempt or specifically devised properties require waivers from the spouse, children, or devisees. Sales of homestead properties by the personal representative are restricted unless explicitly directed by the will or designated to the estate under appropriate circumstances.

Ormond Beach Probate Attorney

With clear guidelines and careful adherence to legal requirements, the sale process can be managed effectively. We’re here to help you navigate the challenges of losing a loved one. Grief is a universal experience, and navigating the probate process can be overwhelming. Don’t hesitate to reach out to our experienced Ormond Beach probate lawyer, Andrew J. Pascale. Give us a call at 877-667-1211, and we’ll be happy to guide you through this difficult time.  This blog does not constitute legal advice.