Can The Executor Sell A House That Is In Probate?

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Can The Executor Sell A House That Is In Probate - Do All The Heirs Have To Agree To Sell Property - Can Executor Sell House

Can an executor sell a house that is in probate?

And do the beneficiaries have any say in the executor selling a property? 

In this article, you’ll learn about:

  • Executor Selling House Below Market Value?
  • Can An Executor Give Property Away?
  • Do All The Heirs Have To Agree To Sell Property?
  • Does The Executor Of A Will Have The Final Say?
  • Can An Executor Of A Will Sell Property Without All Beneficiaries Approving?

Let’s dig in.

hen the courts appoint an administrator to an estate, they can choose anyone. This includes creditors or third-party companies. Meaning you and your family lose all control over the estate.

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Can The Executor Sell A House That Is In Probate?

An executor can sell a house that is in probate. 

An executor will sell a house that is in probate to:

  • pay off creditors
  • pay off outstanding debts
  • make distributions of cash to beneficiaries

An executor cannot sell a house that is in probate if it goes against the will

Let’s say the will states that one of the beneficiaries should inherit the house. 

In that case, the executor has to follow the will. 

And they cannot sell a house that is in probate. 

Related: Disadvantages Of A Trust

Can An Executor Sell Property To Himself?

An executor can sell property to himself

But, the executor has to sell property to himself at fair market value

Meaning the executor cannot sell a house below market value to himself. 

The executor needs to have the property appraised. 

We recommend getting three different appraisals and averaging them together. 

Then, get approval for the appraisal from the beneficiaries. 

If they do not approve, the executor can seek approval from the courts. 

If you have an average of three appraisals, the courts are likely to approve the appraisals. 

Then, the executor can sell property to himself. 

Related: Consequences Of Not Probating A Will

Can A House Be Sold While In Probate?

A house can be sold while in probate

To sell a house while in probate, the executor needs to petition the courts to sell the house

Before the executor shows up to the court hearing, they need to get appraisals. 

The judge will use this appraisal to make sure that you sell the house for 90%+ of market value. 

In this hearing, the executor will receive permission to sell the house while in probate

The buyer of the property needs to put down a 10% down payment.

The offer is subject to the court’s approval

Once the offer gets accepted, the heirs need to get notified

The executor will need to give the heirs a Notice of Proposed Action

It simply states the terms of the sale of the home. 

The heirs have 15 days to object to the sale of the home while in probate. 

Related: What If The Executor Does Not Probate The Will

How Does An Executor Sell A House?

Let’s talk about how does an executor sell a house. 

The steps for how an executor sells a house are:

  1. File the will with the probate courts.
  2. Get the courts to name an executor.
  3. Find a Realtor or We Buy Houses company to buy the house.
  4. Make repairs from the estate budget if needed.
  5. Have your probate attorney create the Executor’s Deed.
  6. Close on the house. 
  7. Sign the Executor’s Deed and have it notarized.
  8. Deposit proceeds from the sale into the estate account

Can Executor Of A Will Put You Out Of A House?

An executor of a will can put you out of a house

There are two scenarios for an executor of a will to put you out of a house:

  • there is a lease agreement
  • there is not a lease agreement

Let’s say there is a lease agreement with the beneficiary living in the house. 

In this case, the executor has to evict the beneficiary

To put you out of the house, the executor needs to:

  • determine the grounds for eviction
  • provide the beneficiary with a notice of eviction
  • file for eviction and attend the hearing
  • evict the beneficiary from the house

Let’s say that there is NOT a lease agreement with the beneficiary living in the house.

In this case, the executor can put you out of a house with an Unlawful Detainer

To evict a beneficiary with an unlawful detainer:

  • file a complaint for unlawful detainer with the courts
  • serve the beneficiary with the unlawful detainer
  • go to court if they do not move out
  • get court orders for the beneficiary to move out
  • give your Writ of Execution to the Sherriff’s department for eviction

Related: How To File A Will

How Long Does An Executor Have To Sell A House?

An executor has 5 years to sell a house. 

There is no time limit for how long an executor has to sell a house. 

How long it takes an executor to sell a house depends on if the:

  • will is contested
  • heirs collectively agree to sell the house
  • housing market
  • property has liens
  • property is upside down
  • property needs massive repairs

By law, an executor has a 30-90 day time limit to probate a will

The exact probate time limit depends on the state you live in. 

Another law is that the will becomes invalid 5 years after probate is filed

So, the executor needs to sell the house within 5 years

That way, the proceeds can get distributed per the will. 

If the will becomes invalid, the estate gets divided up per intestacy laws

But there are no laws saying how long an executor has to sell a house.

Related: Difference Between Executor and Trustee

Can An Executor Transfer Property To Himself?

An executor cannot transfer property to himself

This is because the property belongs to the beneficiaries. 

The only way that the executor can transfer property to himself is if it’s the will’s instructions

For example, maybe the executor inherited the house while the other beneficiaries inherited money.

Or the executor is the only beneficiary. 

Otherwise, the executor has to follow the will’s instructions. 

And the executor cannot transfer property to himself. 

Related: How Long Do You Have To Probate A Will?

Executor Selling House Below Market Value?

An executor can sell a house below market value

But if the executor is selling a house below market value, they have to get beneficiary approval

An executor can sell a house at 90%+ of market value without beneficiary approval

So, if they are selling a house below 90% of market value, they need permission to do so. 

To sell a house below market value, the executor has to get permission from the courts. 

During this period, the beneficiaries can:

  • find a buyer willing to pay a higher price
  • pay a higher price themselves to obtain the property

What if no one is willing to pay a higher price?

The judge will give the executor permission to sell the house below market value. 

Related: How To Get Power of Attorney

Can An Executor Give Property Away?

An executor cannot give property away because it belongs to the beneficiaries. 

But there are ways that the executor can give property away. 

An executor who wants to give property away can buy the property from the beneficiaries.

If the executor buys it from the beneficiaries at market value, they can give it away.

They can also give the property away if the will instructs them to do so

If the beneficiaries disagree with the will giving the property away, they need to contest the will

But contesting a will means you’re trying to prove the will is invalid

Contesting a will does not mean you are changing things you don’t like

If the executor gives the property away without permission, there are repercussions. 

  • the executor can be removed by the judge
  • the executor will have to pay restitution for giving the house away
  • the executor will have to pay attorney fees out of pocket
  • they can face litigation from the beneficiaries
  • they can face criminal charges for stealing

If your executor gives property away without permission, contact a probate attorney

Related: Conservatorship vs Guardianship

Can A Beneficiary Stop The Sale Of A Property?

A beneficiary can stop the sale of a property

But only if the executor is selling the property below 90% of fair market value.

An executor’s responsibility is to follow the will’s instructions. 

Or act in the best interest of the estate. 

If the executor is not, then the beneficiary can stop the sale of a property. 

But a beneficiary cannot stop the sale of a property for other reasons

For example, let’s say the property has extreme sentimental value for the beneficiary.

The beneficiary cannot stop the sale of a property for this reason alone. 

The executor has to get approval to sell a property under market value

The only ways a beneficiary can stop the sale of a property is if the executor is:

  • selling the property under market value without approval
  • not following the will’s instructions

Related: Avoiding Probate

Do All The Heirs Have To Agree To Sell Property?

All heirs do not have to agree to sell a property. 

Property can be sold without all of the heirs agreeing

There are two scenarios where you might wonder if heirs have to agree to sell property:

  • the property is still in probate
  • the property has been distributed and probate is completed already

Let’s say the property is still in probate.

The executor needs to petition the court for approval to sell the property. 

But what if probate is closed and the heirs own the property together?

The heirs who want to sell need to file a complaint to partition the property.

In either case, the judge will make the decision to sell the property

And they will issue a court order for the executor or heirs to sell the property. 

So, no, all heirs do not have to agree to sell property. 

Related: Penalty For Stealing From An Estate

Does The Executor Of A Will Have The Final Say?

An executor of a will has the final say as long as they are:

  • following the will’s instructions
  • acting in the best interest of the estate

An executor of a will needs to be able to prove in court that they have:

  • done their due diligence in probating the estate
  • kept proper bookkeeping
  • kept evidence of their decisions (i.e., appraisals of property)

If they have not done these things, a beneficiary can challenge the executor in court. 

But if the executor is following the will’s instructions, they have the final say. 

Related: What An Executor Cannot Do

Can An Executor Of A Will Sell Property Without All Beneficiaries Approving?

An executor of a will can sell property without all beneficiaries approving

To sell property without beneficiary approval, the executor has to sell property at 90%+ of market value

To do this, get three appraisals of the property. 

And then take the average of those three appraisals. 

(I know you don’t want to pay for three appraisals.

But if a beneficiary contests you, you want to have more evidence supporting you.)

Then, you are able to sell the property at 90%+ of the appraised market value. 

And you can sell the property without the beneficiaries approving of it. 

Related: Executor Not Communicating With Beneficiaries

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