Question: What is the best way to sell real property bequeathed but never transferred to an heir who later died intestate?

Background:  The Will of a family member (Mr. X) stipulated that certain real property go to a named beneficiary (Ms. Y). However, Ms. Y died intestate before Mr. X’s Will had been probated and so the transfer of the land to Ms. Y has never been completed. There is a prospective purchaser for the land now and the family would like to sell it.

Answer from Loraine: This is a complicated situation indeed. You may find that both estates will need to be opened. That will mean someone has to offer Mr. X’s Will for probate for Mr. X if it’s still possible to do so. Someone will also need to file a Petition for Letters of Administration for Ms. Y’s estate, ideally with the consent of all of Ms. Y’s heirs. Once both estates are open, the Executor of Mr. X’s estate may then be able to administer Mr. X’s estate and execute an Executor’s Deed to transfer the property to Ms. Y’s estate. The Administrator of Ms. Y’s estate may then be able to sell the property.

Without knowing more about the facts, including but not limited to whether Mr. X actually held clear title to the property himself, exactly how his Will was written, and how long Ms. Y survived him, however, it’s not possible for me to actually give you advice on what you could or should do. A lot of factors apply to determine the proper outcome of a situation like the one you describe. Consult with an experienced probate attorney so that the attorney can ask all of the needed questions. Then, have the attorney advise you on the best way to handle things.

Key Estate Planning Takeaway: Complex legal situations like this one involving multiple estates can include legal nuances not evident to non-lawyers, and can require consideration of a lot of facts that non-experts may overlook. Having guidance from an attorney specializing in probate matters, who can review the facts, ask the right questions, and offer advice based on previous experience, can be critical to allowing grieving family members to figure out what needs to be done.

This “Q&A with Loraine” blog series features answers from Morgan & DiSalvo Partner Loraine DiSalvo to commonly asked legal questions. A key takeaway from each exchange highlights an important facet of estate planning.

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