Our firm is regularly asked by our clients to assist with the sale of real estate in Ohio probate court. This article provides a brief overview of the ways real estate can be sold through a probate estate in a testate or intestate estate. Having experienced legal counsel to assist with the sale of real estate through estates is important for making sure that the transaction proceeds smoothly and properly.
When a person dies owning Ohio real estate that is either titled in the name of the decedent only, or is titled as tenants in common (as opposed to being titled as joint tenants with rights of survivorship), the title to the decedent’s real estate immediately vests by operation of law in beneficiaries who are entitled to inherit the real estate under the decedent’s Last Will and Testament (a testate estate). If there is no Will, the title to the decedent’s real estate immediately vests in the decedent’s heirs at law (an intestate estate). The rights of the beneficiaries or heirs to the decedent’s real estate are subject to divestment if the real estate needs to be sold to pay the decedent’s debts, or if the real estate is otherwise sold pursuant to a procedure below.
The easiest way to sell real estate from a probate estate is pursuant to a power of sale contained in the decedent’s Will. Most Wills authorize the executor to sell the decedent’s real estate upon the terms the executor believes are in the best interest of the estate. This power gives the executor the authority to sign a deed to transfer the real estate to a purchaser without the approval of the probate court. (See Ohio Revised Code § 2127.01). It saves time and money and is one of many reasons everyone should have a valid Will.
If a decedent died intestate, that is, he or she does not have a valid Will (or if the Will does not contain a power of sale), then the decedent’s real estate can only be sold with the consent of all of the beneficiaries or heirs, or through a land sale proceeding (also known as an action to sell real estate).
To sell real estate by consent, the executor or administrator must obtain the written authorization to sell the real estate from the decedent’s surviving spouse and all of the beneficiaries under the Will or heirs at law. This can cause significant problems if one or more people disagree with the sale of the real estate. Also, if there is a minor beneficiary or heir, no one can consent to sale of the real estate for the minor and the land sale proceeding discussed in Part 2 of this article must be employed. Assuming everyone’s consent can be obtained, the executor or administrator must then file the consents to sale with the probate court. The filing of the consents to sale gives the executor or administrator the authority to sell the decedent’s real estate for an amount that is 80% or more of the appraised value of the real estate. (See Ohio Revised Code § 2127.02).
About Arenstein & Andersen Co., LPA
Arenstein & Andersen Co., LPA, located in Dublin, Ohio, provides comprehensive estate planning and probate and trust administration services. A sampling of our services in these areas include preparation of Wills, Trusts, Financial Powers of Attorney, Health Care Powers of Attorney, and Living Wills; representation of executors, administrators, and guardians in probate court proceedings; representation of trustees in trust administrator matters; representation of beneficiaries in contested probate and trust matters; and preparation and filing of estate tax returns and estate income tax returns.