REAL ESTATE INTERESTS IN PROBATE AND NON-PROBATE – PART 3
By Cary A. Lind
Selling Real Estate from Probate Estates.
It is not necessary to obtain court approval or permission to sell real estate if you are in independent administration or if there is language in the will authorizing sale of real estate without court order. In either case, you will only need an appropriate bond to cover the sale of the real estate, but no other court approval or procedures. Consider yourself lucky!
If the estate is supervised (deceased, disabled, or otherwise) and if court permission must be sought, you must prepare for a potentially arduous process. The provisions for administration of real estate are found in Article 20 of the Probate Act. This article will focus on the provisions regarding sale.
There is a threshold question of when a representative may sell real estate. Section 20-3 directs the sale of the ward’s estate or any interest in the estate “when the court deems it necessary or expedient for the support and education or the persons entitled thereto under this Act, for the payment of the debts of the ward or for reinvestment.” Section 20-4 prohibits sale of the real estate of a decedent specifically bequeathed or directed by the testator not to be sold “unless necessary for the payment of claims, expenses of administration or estate or inheritance taxes or the proper distribution of the estate.” Real estate in a decedent’s estate not within those restrictions may be sold at the representative’s discretion.
If real estate is to be sold, Section 20-5 sets out the procedure for supervised estates. There must first be presentation and filing of a verified petition setting forth the facts that allow or direct the property to be sold and the desired terms of sale, in particular, the price, broker’s commission, and contingencies. Most judges require an appraisal of the real estate, sometimes by an appraiser not affiliated with the listing broker. All persons holding liens or having an interest in the property are to be made parties defendant. Process must be issued and served as in any other civil case. That means that every interested party must be served personally, by substitute service, or by publication. Further, until every interested party is served or is otherwise before the court, the petition cannot be approved. Once served, each party has the right to answer, object, etc. That can (in a worst case) take a period of several months in all.
Ultimately, you should get a court order authorizing sale of the property with an appropriate bond. By the time you get that order, will the purchaser still be ready, willing, and able to purchase the property? Maybe not. If so, you then need to start all over again with the next buyer.
1. There is a simple alternative for decedent’s estates, although it is not always feasible. You can attempt to get the consent (in advance, if possible) from all interested parties to the deal or to a deal within certain parameters. For example, you may get everyone’s approval to sell the property at or above a particular price with only certain contingencies that are acceptable to all. If you get approval from all interested parties, you can present the consents to the court and avoid the long route. Even if you do not get agreement from everyone, for each consent, you will save some time and expense. While consents do not bind the court in disabled or minor’s estates, consents of parties with ultimate interests can still encourage the court to more readily approve a proposed sale.
2. If there is no will with a power of sale, you may be able to get permission of the interested parties to a decedent’s estate to convert to independent administration for purposes of selling the real estate. An independent representative can sell real estate without the supervised procedure and its hurdles.
3. If there is any way that you can avoid the long route, you should do so. If you impress upon the interested parties that the fees and costs will be substantially higher without everyone’s consent, you may receive their prompt cooperation.
©2002 by Cary A. Lind, all rights reserved.