As personal representative or executor under a will, there may be many situations in which you find it necessary to split the property of a decedent into several shares. For example, a parent may have died leaving several parcels of real estate without designating which parcel of land goes to which child or a child predeceases the parent so that their children become beneficiaries, splitting their one share into many. Either way, you find yourself in this quandary, unsure how to divide the non-liquid assets under the will. Determined to fulfill your fiduciary duties, you struggle with several options before making a decision you feel is best for everyone involved.
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Probate the will. This may seem simplistic, but generally, property vests in the devisees or beneficiaries under the will at the time of the decedent’s death after payment of any debts owed by the estate. Once all other requirements for probate have been met and it is time to distribute the assets, an attorney may advise you to execute a personal representative’s deed to all beneficiaries in the percentages as set out in the will. This will perfect the real property records so that the public will be put on notice of the transfer of the property. Once the estate has finalized and you are discharged by the court, property will belong to the devisees or beneficiaries under the will. After this time, if any of the parties desire to liquidate the property, they can either sell to the remaining property owners or file a petition with the courts for a court-ordered division of the property.
Exercise your power of sale under the will. Many wills grant the personal representative the authority or power to sell property and split the proceeds. If the devisees or beneficiaries under the will bicker and cannot decide who gets the vacation condo on the ocean as opposed to who gets the farm land in Iowa and have reached an irresolvable impasse, contact a realtor and offer the property for sale at fair market value. This action may require, however, that you have consent from all the devisees to exercise your complete duties under the will.
Hire a surveyor and split the land if the property is one large contiguous tract. The surveyor will charge fees for this service, of course, but if the estate were to sell various parcels to third-party purchasers, it may have to pay surveying fees anyway. Hire a property appraiser to get a fair and accurate value for each parcel to be split so that the various parties do not feel they received a parcel of land lower in value than another parcel. Have all the devisees and/or beneficiaries under the will sign each of the deeds, especially if you are the personal representative and a devisee as well. A title company might be wary of insuring a parcel of land that a personal representative deeded to himself. All devisees and/or beneficiaries should agree to accept the deed for their parcel, however, as most state laws require a willing recipient in a property conveyance.
Petition the court for sale of the property. This may be your only option if the beneficiaries refuse to agree on how to divide the property and tensions escalate. Have a willing purchaser and a real estate contract in place before petitioning the court. The court may hold a hearing allowing all parties concerned to object to the sale, but in the end, it may grant your petition and allow the sale to take place so that you can distribute the proceeds as set out under the will.
Tips & Warnings
- Tensions often run high in disbursing property that belonged to the family. Acting as personal representative may require a balance between compassion and duty to maintain future family relationships.
- Personal property may be disbursed by holding an estate sale or by offering desired items to family members in the form of a family auction.
- Consult an attorney to assist you in dealing with estate matters and distribution of property. She should be an objective party to the property transfer who will assist you in fulfilling your fiduciary duty.
References & Resources
- LandAmerica, Singlesource: The Vesting of Titles to Real Property Upon Death
- Superior Court of California, County of Santa Clara: Closing and Distributing the Probate Estate
- Virginia Estate Law Newsletter: Sale of Real Estate in the Decedent’s Estate
- The ‘Lectric Law Library: Delivery
- Edivvyup Estate Distribution: Planning an Estate Auction
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