Senior Associate
Yes, a personal representative can sell real estate during probate in Massachusetts, but whether court approval is required depends on the authority granted under the will. If the will includes a power of sale, the personal representative can generally sell the property without obtaining a License to Sell from the Probate and Family Court. If the will does not grant that authority, the personal representative typically must obtain a License to Sell before completing the transaction.
Selling real estate is often necessary to pay estate debts, distribute assets to beneficiaries, or simplify the administration of an estate. If you’re serving as a personal representative or you’re a beneficiary with questions about the process, understanding when a property can be sold and what legal authority is required can help prevent delays.
When Can a Personal Representative Sell Real Estate?
Massachusetts law provides two primary ways for a personal representative to sell estate real estate.
The Will Grants a Power of Sale
Most modern wills include language giving the personal representative broad authority to manage and sell estate assets. When the will grants this power, the personal representative can generally sell the property without first obtaining a License to Sell from the Probate and Family Court.
The Court Issues a License to Sell
If the will does not include a power of sale, or the decedent died without a will, the personal representative will generally need to petition the Probate and Family Court for a License to Sell before transferring ownership of the property.
The License to Sell is a specific legal process that authorizes the sale of estate real estate. Obtaining a license does not necessarily mean the probate estate is under ongoing court supervision. Instead, it provides the authority needed to complete the sale when a power of sale is unavailable.
Why Might Estate Property Be Sold During Probate?
Selling real estate is often a practical step in administering an estate. A personal representative may decide to sell property to:
- Pay estate debts or taxes
- Cover administration expenses
- Divide assets fairly among multiple beneficiaries
- Avoid the ongoing costs of maintaining vacant property
- Convert the estate into cash for distribution according to the will or Massachusetts law
Whether the property is sold under a power of sale or pursuant to a License to Sell, the personal representative must continue to act in the best interests of the estate and its beneficiaries.
What Responsibilities Does a Personal Representative Have When Selling Real Estate?
A personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries throughout the sale process. Whether the property is sold under a power of sale or pursuant to a License to Sell, decisions should be made for the benefit of the estate rather than for personal gain.
A personal representative should generally:
- Seek a fair market value for the property.
- Maintain the property until it is sold.
- Keep accurate records of expenses and sale proceeds.
- Disclose relevant information when required.
- Follow the terms of the will and Massachusetts probate law.
Selling property for substantially less than its value, failing to account for sale proceeds, or acting in a way that benefits one beneficiary over others may expose the personal representative to legal challenges.
Can Beneficiaries Object to the Sale?
Beneficiaries cannot prevent the sale simply because they disagree with the decision. However, they may raise objections if they believe the personal representative lacks the authority to sell the property or has failed to fulfill their fiduciary duties.
For example, a beneficiary may challenge a sale if they believe:
- The property is being sold for less than its fair market value.
- The personal representative is acting for personal benefit.
- The terms of the will are not being followed.
- Estate assets are being mismanaged.
When disputes arise, the Probate and Family Court may be asked to resolve the issue before the estate is closed.
What Happens to the Sale Proceeds?
After the sale is complete, the proceeds become part of the probate estate. The personal representative generally uses those funds to pay valid debts, taxes, and administration expenses before distributing the remaining assets according to the will. If there is no will, Massachusetts intestacy laws determine who inherits the remaining estate assets.
Throughout the administration, the personal representative should maintain detailed financial records and be prepared to provide an accounting when required.
Questions About Selling Probate Real Estate?
Selling real estate is often one of the most significant responsibilities a personal representative will face during probate. Understanding whether a will grants a power of sale, when a License to Sell is required, and how to fulfill your fiduciary duties can help avoid unnecessary delays and disputes.
At LaFountain & Wollman, P.C., we help personal representatives and families throughout Massachusetts address probate issues involving real estate, estate administration, and beneficiary concerns. If you have questions about selling property during probate, contact us to discuss your situation.