Selling Property in a Probate Case

One of the many duties of an executor or administrator of an estate is the management of the deceased person's property. Sometimes, that management involves the sale of property. How, exactly, does one go about selling property in probate that belongs to a decedent's estate?

First things first: unless you are the executor or administrator (also known as the personal representative of the estate), you don't sell or transfer any of the property of the estate. You could find yourself in legal trouble if you do. If you are the personal representative, the procedure for selling property depends partly on the circumstances and partly on the type of property.

Does the Will Give Authority to Sell Property?

If the deceased person's will authorizes the personal representative to sell real or personal property, the personal representative need not seek court approval prior to the sale. Ohio probate law, specifically ORC 2113.39, states that the personal representative of the estate can sell property for any reason without limitation as long as it is in the best interest of the estate. If the will places limitations on the power of sale, however, those limitations will remain in effect.

If the will has not authorized the personal representative to sell property of the estate, they may still do so by getting the permission of the probate court for the county in which the will is being probated. Likewise, if there was no will, the administrator of the estate could still sell personal property of the estate with probate court permission.

Sometimes a personal representative is not just permitted, but required to sell estate property. If the personal representative is required to sell personal property of the estate and fails to do so, keeping, using, or transferring it for their own benefit, they could be held personally liable.

Selling Real Estate During Probate

The personal representative of the estate can sell real property during probate if certain conditions are met, even if specific permission wasn't granted in the will of the deceased person (also known as the decedent).

Those conditions include:

• The surviving spouse and all persons named as devisees in the will (or heirs at law if there is no will) must consent in writing to the sale of a particular parcel, or to all of the real property of the estate.
• The consents to a power of sale must be filed in the probate court.
• Any sale made must be for at least eighty percent of the appraised value of the property as set forth in an approved inventory of estate assets.
• If any heir or devisee is a minor, they cannot consent to a power of sale, nor can anyone consent on their behalf.

If the decedent's surviving spouse is the executor of the estate, he or she may sell the property to him- or herself under Ohio law.

Dealing with real estate is often one of the most challenging aspects of administering the estate. If the deceased owned real estate in his or her own name, it is very helpful for an executor to have the guidance of an experienced Ohio probate attorney to walk them through the process, obtaining and filing any necessary consents and getting any required court approval for the sale.