When a loved one dies and leaves real estate, which is usually the decedent’s family residence, the heirs ask amongst themselves, do all heirs have to agree to sell property? The answer is, it depends on whether the real estate is still under estate proceedings or has already been transferred to all the co-heirs.
Generally, when a loved one dies, an administrator or executor is appointed by the Surrogate’s Court to administer the decedent’s estate (i.e., to pay the taxes and debtsSelin and thereafter to distribute whatever is remaining to the beneficiaries). The administrator is usually the closest living relative, who is normally an heir. The executor, on the other hand, is appointed by the testator in his will and may or may not be an heir.
Real property still in estate proceedings
Do all heirs have to agree to sell property that is part of probate? During estate proceedings, the decision of whether to sell real property or not lies on the executor or administrator. When the debts of the decedent are more than his assets, there is no doubt that the executor or administrator can sell the real property, even over the objection of all the heirs, and use the proceeds of the sale to pay the decedent’s creditors.
Although the law doesn’t require the executor or administrator to obtain approval from the heirs regarding the sale of the property, it is always advisable that the executor or administrator confer with the heirs regarding this decision on whether or not to sell the property and at what price. The executor or administrator should get the beneficiaries’ confirmation in writing that they are comfortable with the price the real property is being sold to avoid any litigation in the future regarding any allegation of the executor or administrator’s misconduct for selling real property below market value. Selling real property below market value may be cause for misconduct due to the wastage of estate resources and may make the executor or administrator liable for the surcharge (the difference between the fair market value and the selling price). For this reason, it is better for administrators and executors to have an attorney to help them conduct their business properly without triggering any issues with the law or upsetting the beneficiaries.
Real property that was already transferred to heirs
Do all heirs have to agree to sell property that was already transferred to them? Once estate proceedings are completed and real property of the decedent has been transferred to the heirs, the heirs now hold the property as co-owners. In this case, in order to sell the entire property, all the heirs have to agree to sell the property.
Usually, one or more of the heirs is living on the property rent-free, while the other co-heirs are not. This can create a feeling of unfairness with the heirs who are not living on the property and not able to receive any rent from it. The heirs who are unhappy will first try to convince the other heirs to sell the property. However, if all the heirs do not agree to sell the property, an heir can compel the sale of the property by filing an action for partition. A lawyer can assist you in filing this action.
Thus, to answer the question of whether all the heirs have to agree to sell the property, it depends on whether the real property is still under estate proceedings or has been transferred to the heirs. If the real property is still under estate proceedings, the executor or administrator has the power to decide whether to sell the property or not. If the real property has been transferred to the heirs, then all heirs have to agree to sell the property.
Should you have property issues and need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.