By: Amanda M. Fairweather, Esq.
Is there real estate involved in your loved one’s estate? If real estate is involved, the Will may have designated that the property go to a certain heir or other beneficiary, or that the property be sold and the assets distributed equally or in whatever shares the decedent intended.
Power to Sell Real Estate
The Personal Representative of the estate may sell real estate by petitioning the court for a License to Sell, unless the Will waives this requirement. Even if the Will does include this “power to sell,” it may be wise to petition the court for a License to Sell, especially if there are disagreements amongst the heirs. A Petition for a License to Sell allows everyone the opportunity to be heard, grievances to be aired, and protects the Personal Representative from possible personal liability if something goes wrong, by getting a “stamp” of approval from a judge.
Highest and Best Price
Buyers must be informed that the Personal Representative has a fiduciary obligation to get the highest possible price on the sale of the real estate for the heirs of the estate. Not every broker or real estate attorney are familiar with this legal obligation or the probate process. Our office is able to handle the probate of estates as well as the sale of real estate. In the event the Personal Representative receives a subsequent offer and the first buyer cannot or will not match the new offer amount, the Personal Representative is obligated to take that new and better offer.
Obtaining a License to Sell
When applying for the License to Sell Real Estate, the Personal Representative must have a signed Purchase and Sale Agreement with an agreed upon price and closing date. The purchase price forms the basis for the real estate license to be issued. If the price is modified afterwards, the Personal Representative must petition the court for another license. Licenses are granted for a fixed period of time, so you must make sure the correct closing date is on the license.
When applying, the Personal Representative must do the following:
- Submit the signed Purchase and Sale Agreement;
- Provide an inventory of all the estate’s assets approved by the heirs; that
- Include the terms of the sale, sale price, and description of the property.
The Personal Representative’s obligation to sell at the sales price should have language in the Purchase and Sales Agreement that makes it contingent upon the Personal Representative obtaining the License to Sell from the court at the absolute highest price possible; that the Personal Representative’s License to Sell granted by the Court is still in effect as of the date of closing and that no higher or better offer comes in before conveyance of the real estate. This can protect the Personal Representative in the event a higher offer does come in so that the Personal Representative can consider the better offer without risk of being sued by the original buyer, or the heirs at law.
Recorded or Registered Land
In Massachusetts there is both recorded and registered land. If registered land is involved, the title documents will need to be approved by the Land Court prior to the sale of the real estate. Obtaining Land Court approval is a detail-oriented process, and a Personal Representative must exercise care in choosing a law firm that has experience with estate sales involving registered land.
When real estate is involved in an estate, it is important to have an attorney who specializes in both probate and real estate representing you. Casey & Lundregan P.C. has successfully represented many estates with complex real estate transactions involving both recorded and registered land. Our knowledge and experience will help you navigate these difficult matters smoothly.