When I’m discussing the probate process with a client, the discussion will get to a point where we talk about how the process may take a year or so before it is completed. And then I get the question:
You mean I can’t sell the house for a year?!?
Not exactly. Potentially as soon as we have a personal representative appointed by the court we are able to sell the real estate and other property.
There is an exception to that statement, however. That is only permissible if there is a will and if the will has the “magic language” that permits the executor to sell property without court approval.
If: (1) there is no will or (2) the will does not have the “magic language”, the the personal representative will need to apply to the court for approval to sell the real estate. That means you will need to give notice to the beneficiaries/heirs and either get their written consent, or set it for a court hearing and give the beneficiaries/heirs 20 days notice of the hearing and potentially have a court hearing for approval of the sale.
Moral of the story: Have the will drafted that gives that authority or plan appropriately to get the consents of the beneficiaries/heirs.
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