Can the Executrix of a Will Sell Real Estate?

By Marie Murdock

An executrix is a woman named in a last will and testament, and subsequently appointed by the court, to manage the estate of a decedent in probate. The male counterpart to an executrix is an executor; either party may also be referred to as a personal representative. A decedent will often designate a wife, daughter or other trusted family member to manage his affairs after death, according to the terms of his will. Those terms, as well as state law, usually dictate whether or not an executrix may sell a decedent's real estate.

Grant of Authority

Without a court order, referred to as “letters testamentary,” an executrix has no authority to act on behalf of an estate. Letters will not be issued until a will has been presented and accepted by the court for probate. Once appointed, the executrix’s authority to act is provided by the will’s terms, state law and/or the court. Some wills give the executrix authority to sell real estate, if she chooses, while others explicitly direct an executrix to sell a decedent's real estate and divide the proceeds among the beneficiaries. If the executrix is directed to sell real property, she is obligated to comply with the directions of the decedent, outlined in the terms of the will. If, however, she is given the power to sell, she may have more leeway in deciding if a sale of real estate is necessary to effectively administer the estate. If the will does not specifically grant the power to sell to the executrix, she may be required to obtain a court order to sell property by her signature alone.

Payment of Claims

An executrix has a duty and obligation to fulfill the terms of the will and comply with state law in performing her duties. Debts, taxes and other claims against the estate must be paid before assets and funds are disbursed to the beneficiaries. If there are insufficient liquid assets or personal property in the estate to pay those debts, she may have to sell a decedent's real estate to generate adequate funds.

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Value of Equity

If there is a mortgage on the property, payments will be due. Depending on the amount of equity the estate has in the property and the amount of cash available, the executrix may continue to make payments from the cash assets to preserve the equity. If, however, there isn’t enough money in the estate to continue making payments and the beneficiaries aren’t willing to assume a mortgage that may encumber the majority of the equity, the executrix may sell the property and distribute the proceeds as directed by the will. If the property has fallen into disrepair, the beneficiaries may be relieved to find a willing buyer and pleased with any amount of cash they may acquire in exchange. The executrix may hire an appraiser, accountant, closing attorney or other professionals to determine property value, complete the sale and distribute the proceeds.

Breach of Duty

An executrix is a fiduciary in that she acts on behalf of and for the benefit of the beneficiaries. As such, she is required by law to act honestly, prudently and impartially in the fulfillment of her duties. If an executrix exceeds her authority by selling property to the detriment of a decedent's beneficiaries, she may be held liable for damages in a court of law. If in doubt as to her authority, she would be wise to first obtain permission to sell from the court.

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References

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