What an Executor Can and Cannot Do: Real Estate Edition

By PropertyClub Team
Oct 8th 2022
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.

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. 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 valuable. 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.

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. 

hash-markWhat 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)

hash-markWhat 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

hash-markHow 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.

hash-markHow Long Does An Executor Have to Sell A House? 

There is no fixed time frame in which an executor must sell a house. It can take anywhere from two months to a year or even longer for an executor to sell a house, depending on how the probate process goes. If the will dictates that the house should be sold, the executor can sell the home quickly, but if beneficiaries contest the sale, it could take much longer.  

hash-markCan An Executor Of A Will Sell A Property Without All Beneficiaries Approving?

Yes, an executor can sell a house or other property of the estate without all beneficiaries approving the sale. As long as the will does not explicitly disallow the sale of a home, the executor has the legal right to sell the property. This can be confusing if the property is willed to a beneficiary, but the executor needs 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. But as long as the deed doesn't have a clause preventing a sale, the executor can sell the property to cover other bills. 

hash-markWhen Can A Beneficiary Stop The Sale Of A Property?

A beneficiary can stop an executor from selling a property, but only in limited circumstances, such as if the executor is benefiting from the sale. For example, if the executor is selling the property to himself or his family for below market value, a beneficiary can petition the court to stop the sale. Additionally, beneficiaries can hold the executor liable for financial losses they suffer due to the executor's self-dealing or negligence. 

hash-markCan The Executor Sell A House That Is In Probate?

Yes, the executor can sell a house that is in probate. During the probate process, the executor is in charge of administering the estate and may need to sell the property to help cover debts and obligations. To sell a house during the probate process, the executor will need to follow specific procedures. For example, they cannot accept less than 90% of the house's appraised value. 

hash-markCan An Executor Sell Property Below Market Value?

An executor of an estate cannot sell a property for less than fair market value. To ensure the home sells for market value, most executors will hire a real estate agent to market and help sell the property. The probate court also requires the house to sell for at least 90% of its appraised value. 

hash-markCan An Executor Sell A Property To Himself?

Technically speaking, an executor can sell a property to themselves, but they must pay fair market value. If they try to sell themself the house 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 a 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.

hash-markWhat An Executor Can And Cannot Do Bottom Line

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.