What an Executor Can and Cannot Do: Real Estate Edition

The PropertyClub Team
Jun 13th 2020
What can an executor of a will do? Can they sell a property to themselves? Learn more about how an estate is distributed in this comprehensive article.

Experiencing the death of a relative or loved one is emotional and trying, particularly when it comes to sorting out property and belongings left in a Will. While this is a heavy time for all loved ones of the deceased, it can be particularly challenging if you are appointed as executor of the estate. Carrying out the final wishes of a loved one is not a duty to be taken lightly, so it’s important that this job is fulfilled with respect and understanding. The executor has been chosen to bear the responsibilities of finalizing the assets of the deceased, and for most people, their home is their biggest asset.

An executor of an estate is a person appointed, either by the testator of a Will or by a court to administer the estate of someone who has passed away. To do this vital job efficiently, there needs to be an excellent general understanding of precisely what you are responsible for, and what is within your rights as the executor. Several different responsibilities fall to the executor of the estate; namely, they are in charge of property, taxes, bills, and inheritances. While they are responsible for many different assets, real estate and property tend to be the most significant and most valuable. 

Although legally appointed as the person in charge of assets and property, there are strict rules and regulations to abide by to ensure the executor correctly completes their fiduciary duties. The first step an executor should take after notifying all relevant persons of the Will is to file it with the local probate court. Only once the Will is filed is its validity determined and authority officially granted to the executor. Following this process, one of the first things that need to be done is to pay off any outstanding debt left by the deceased. This is where Real Estate or Property usually comes in, as often property will need to be sold to cover debt left behind or liquidate assets.

An executor’s responsibility is to legally carry out the wishes of the deceased as instructed in their will. However, there are certain things that an executor can and cannot do. 

What an executor can do

  • Manage the testator’s assets and property up until the point they are distributed to the beneficiaries
  • Validate the Will in Probate Court
  • Pay off the testator’s debts and taxes
  • Supervise and ensure correct distribution of the testator property and assets
  • Handle all inheritance as indicated in the Will (including the inheritance of Real Estate)

What an executor cannot do

  • Sign the Will on behalf of the Testator
  • Execute the Will before the Testator is deceased
  • Stop the Will from being contested
  • Change the beneficiaries named in the Will

Can an executor of a will sell a property without all beneficiaries approving?

This is where some amount of confusion can come in regarding the executor of the estate and the beneficiaries of the Will. Sometimes, real property is willed to a beneficiary, but the executor of the estate may need to sell that property to pay off debts left behind by the testator. There can be some conflict here, as the beneficiary may be under the impression that the property is theirs to do with as they so wish. If the deed has been directly transferred to a beneficiary through specific wording of the Will, then the latter statement may be true. However, if the Will does not explicitly disallow the sale of a home, the executor has the legal right to sell the property without the beneficiaries consenting. Similarly, if there is no specific clause in the Will stating otherwise or if the Will gives the executor discretion to do as they see fit with the property, they can sell without the consent of beneficiaries.

How does an executor sell a house?

The first step, as mentioned above, is to file the Will and have it validated with the Probate Court. Without this step, the executor is not officially in charge of the Will and cannot sell the property. It’s also essential at this time to follow the timeline and all the regulations of the probate process to ensure that you don’t run into any legal trouble or endanger your position as executor of the estate.

Once you are legally in charge of the deceased’s’ assets, you can then choose to put the property up for sale if necessary. At this point, you can hire a Real Estate Agent and officially list the house. It’s advisable to ensure that any agent you hire to sell the home is experienced in probate real estate sales, as the process can be considerably more complicated than a traditional listing. For example, there may be delays in the sale process due to court confirmation, and there may be disclosures that do not apply to a probate seller.

It is also a good idea to sell the property as quickly as possible. As the property sits there unsold, it will begin to procure costs (such as mortgage payments and bills) that will be taken from the rest of the estate. It is also advisable to deal with the most considerable assets first during the probate process, which typically tends to be Real Estate.

Can an executor sell a property to himself?

An executor of an estate cannot sell the property to himself for less than fair market value. Technically speaking, they can buy the home of the deceased, but if they try to do so for less than the property is worth, it can be considered theft or embezzlement. The executor does not own the property. They are only managing it temporarily. Therefore they cannot deed a home to themselves or buy it for a low price. 

Additionally, they should receive signed consent from the beneficiaries or court order stating that they can sell the property to themselves. As an executor, any mishandling of property or assets is punishable by law, and so should be taken very seriously. It is best to avoid grey areas where you may get yourself into legal trouble.

The process of being responsible for the assets and property of a deceased person is a trying, stressful, and emotional time. Being the executor of an estate is a lot of work, heightened by the fact that you are often short on time to complete the wishes laid out in the Will through the probate process. It is recommended to consult a legal professional if you are named executor of an estate to ensure that you follow the rules and regulations and carry out fiduciary duties completely.