If someone you care about dies, selling their house and things might be the last thing on your mind. But if you’ve been appointed the executor of an estate, the task of distributing the deceased persons assets according to their will falls to you.
As executor, one of your jobs may be to sell the home of the deceased — which may be a difficult (and often expensive) process — especially if the property has to go through probate or youre charged with dividing the estates assets among multiple beneficiaries.
Heres a comprehensive guide on whether an executor can sell an inherited house, and what you need to know about your responsibilities.
It can be hard to deal with a loved one’s estate, especially when there is property involved. A common question is whether an executor can sell property before or after probate. Most of the time, no. An executor cannot sell property before probate is granted. However there are important exceptions and nuances to understand.
As someone who’s guided many families through this process, I want to share the real facts about executor powers, state-specific rules, and potential workarounds that could save you months of waiting and thousands in property maintenance costs.
The Basic Rule: Authority Begins After Court Approval
Most executors are shocked to learn that they can’t start selling things right away after someone dies. Your authority as an executor officially begins only after .
- The will is validated by the court
- You receive “Letters Testamentary” (your official appointment document)
After that, you can’t really change who owns property until then, no matter what the will says. This is because probate is a safety measure that makes sure debts are paid and rightful heirs get their inheritance.
According to research from Nolo, about 57% of executors underestimate how long probate will take. The reality? The average probate process lasts 9-24 months depending on your state and the complexity of the estate.
When an Executor CAN Sell Property Without All Beneficiaries Approving
While beneficiary approval is a separate issue from probate itself, it’s worth noting that an executor can sell property without getting all of the beneficiaries to approve. This is an important distinction that many people misunderstand.
Once properly appointed by the court, the executor has the power to sell property if:
- The will explicitly grants this authority
- The sale is necessary to pay estate debts
- The sale is in the best interest of the estate
The executor has to be a fiduciary, which means they have to put the estate’s needs ahead of their own. They can’t sell property to get money for themselves instead of the beneficiaries.
5 Exceptions: When Property Can Be Sold Before or Without Probate
While the general rule requires probate first, there are several exceptions that might apply to your situation:
1. Emergency Court Orders
In cases where property is at immediate risk, courts can issue emergency orders allowing sale before full probate.
Example scenario: A hurricane damages your mother’s home, insurance won’t cover all repairs, and waiting for probate would lead to further deterioration.
Solution: File an “Ex Parte Motion” showing evidence of urgent financial harm.
State examples:
- Florida Statute § 733.613 permits sales to prevent “waste” (like foreclosure or vandalism)
- California Probate Code § 13006 has a fast-track approval process for crisis situations
2. The Will Contains Explicit Power of Sale
Some wills include specific language granting the executor immediate selling power, with phrases like:
“My executor may sell real estate without court approval to pay debts or maintain property value.”
State example: Texas Estates Code § 356.051 honors such directives for independent executors.
3. Small Estate Affidavits
Many states offer simplified procedures for “small estates” that bypass regular probate:
| State | Small Estate Threshold |
|---|---|
| Michigan | $27,000 |
| California | $166,250 |
| Ohio | $45,000 |
If the total estate value falls below your state’s threshold, you might qualify to transfer property using a simple affidavit rather than full probate.
4. Trust-Owned Property
If the deceased person placed their property in a trust before death, that property isn’t subject to probate at all. The successor trustee can sell immediately without court approval.
This is one reason many people use living trusts as part of their estate plan – to avoid probate delays entirely.
5. Unanimous Heir Consent
In states like Arizona and Colorado, all heirs can sign a “Family Settlement Agreement” agreeing to transfer property without probate – but this requires 100% agreement from all involved parties.
State-by-State Rules: Quick Reference Guide
The rules for executor authority vary significantly by state:
| State | Pre-Probate Sale Allowed? | Key Requirement |
|---|---|---|
| Texas | Yes (if will permits) | Independent executor designation |
| Florida | Emergency sales only | Proof of asset depreciation or debt |
| New York | No | Requires full probate |
| Nevada | With heir consent | All beneficiaries must agree in writing |
The Risks of Selling Property Before Probate
I’ve seen executors make costly mistakes by rushing to sell property. Before attempting any sale without probate, understand these risks:
Personal Liability
Selling without proper authority could make you personally liable for financial losses.
Real case example: A Georgia executor sold a home pre-probate, and when market values rose dramatically a month later, heirs sued and he had to repay $85,000 in damages from his personal funds.
Title Insurance Issues
Most title companies won’t insure property sales before probate is complete, meaning buyers can’t get mortgages and sales fall through.
Family Conflict
Even one dissenting heir can derail a sale – even after closing – if proper procedures weren’t followed.
4 Practical Alternatives to Consider
Instead of risking an improper sale, consider these alternatives:
1. Apply for Expedited Probate
Many states offer faster probate processing for urgent situations. You might get authority in 3-4 weeks rather than months.
2. List the Property with Contingencies
You can market the property with a clause stating “Sale pending probate approval” to find buyers while waiting for official authority.
3. Use Estate Funds for Maintenance
Most banks allow access to some estate funds for property expenses like:
- Mortgage payments
- Insurance
- Essential repairs
- Property taxes
4. Rent the Property
Generate income to cover costs while probate proceeds. Just check local rental laws first!
Executor’s Checklist: Protecting Yourself and the Estate
If you’re acting as an executor, follow these steps to avoid problems:
- Review the Will Carefully: Look for phrases like “sell,” “liquidate,” or “emergency authority.”
- Consult a Local Attorney: Probate rules vary dramatically by county – what works in Los Angeles might not work in rural Texas.
- Document Everything: Take photos of property damage, save repair estimates, and keep records of all heir communications.
- File Early: Submit probate paperwork as soon as possible to minimize delays.
- Communicate Transparently: Keep beneficiaries informed about your plans and reasoning.
Real Questions from My Readers
Can I list the property before probate?
Yes! You can usually list property for sale before probate is complete, but be sure to disclose the probate status to potential buyers. Avoid accepting non-refundable deposits until you have legal authority to sell.
What if the estate has urgent debts?
Courts understand that some debts can’t wait. If mortgage payments, property taxes, or other essential expenses are coming due, file a “Creditor Claim Motion” to expedite authority to address these specific obligations.
Can I sell if one heir disagrees?
In most states, you don’t need unanimous consent from all heirs if you’re the appointed executor – but selling against heir wishes often leads to lawsuits. In Texas, there are rare cases where majority approval is sufficient, but this is the exception rather than the rule.
Wrapping Up: Focus on Compliance Over Speed
When property needs to be sold, the temptation to act quickly is understandable. But as an executor, your primary duty is to follow proper legal procedures. A single misstep could cost thousands in legal fees or even personal liability.
The smartest approach? Work with a local probate attorney who knows your state’s specific rules. What seems like an unnecessary delay might actually be a crucial protection for both you and the estate’s beneficiaries.
Have you dealt with selling property as an executor? What challenges did you face? I’d love to hear your experiences in the comments below!
Disclaimer: This article provides general information about executor powers and probate processes. Laws vary by state and individual circumstances. Always consult with a qualified attorney for advice specific to your situation.
Distribute the remaining assets and proceeds to beneficiaries
The final step is to fulfill the executors primary responsibility: distributing the estates assets to the beneficiaries. This must be done according to the instructions outlined in the will. Failure to follow these directions can lead to legal consequences, including the possibility of being removed as executor.
For instance, if the will says exactly which beneficiary gets a certain item, it’s very important to follow those instructions to the letter. Consulting an attorney familiar with estate law is advisable to ensure everything is handled correctly and legally.
Unresponsive or uncooperative beneficiaries
Another beneficiary-related issue is a lack of communication. It’s possible that you simply won’t be able to reach all the beneficiaries and may not be able to proceed without them.
In other cases, beneficiaries may refuse to sign needed paperwork. In these cases, the court may need to rule on the situation. It’s always best to consult an attorney if you’re unsure about anything.
Can an Executor Sell Property Without Probate?
FAQ
Can an estate be settled without probate in Alabama?
Probate can be avoided in Alabama by setting up a living trust, naming beneficiaries on accounts and assets, and using other estate planning strategies.
How long does an executor have to sell property?
How Long Does An Executor Have To Sell Property In California? In the Golden State, there’s no hard and fast deadline for an executor to sell a property. However, they do need to keep things moving along with the estate’s timely administration.
Can an executor sell a property?
The executor or administrator of an estate gets their power from the will or probate laws. Anyone who is in charge of probate can sell a property if the will or the laws say they can. Of course, they will need to act in the best interests of the beneficiaries and the estate and notify the beneficiaries of the plan to sell the property.
Can an executor sell a property without all beneficiaries approving?
If the executor thinks it is best for the estate and its beneficiaries, and if it also follows the will of the person who died and the law in the state, they can sell a property even if not all of the beneficiaries agree. The executor has the power to choose the probate lawyer and the real estate broker.
Can an executor sell real estate without a will?
As long as they follow the instructions in the will, an executor can sell a house without getting permission from all the beneficiaries. Real estate can be sold by the administrator without the beneficiaries’ permission as long as there is no good reason not to. In some cases, real estate is not probated. One example is joint ownership.
Who can sell a property after probate?
It’s actually the estate, through the executor or administrator appointed by the probate court, that has the legal authority to sell the property. However, this can only happen after probate has been initiated and the court gives permission to sell.
Can an executor sell a house if a person dies?
When a person passes away, their appointed executor is tasked with managing the estate, which often includes real property. A common question is whether the executor can sell a house or land without getting approval from every beneficiary.
Can an executor sell a property in British Columbia?
A testator may give the named estate executor permission to sell and otherwise deal with their property, as long as it’s in the estate’s best interest. When the British Columbia probate court issues a grant of probate, the executor has the authority to sell the property in order to proceed with their duties of distributing assets.