Question: What is the best way to sell real property that was bequeathed but never transferred to an heir who later died intestate?
A house is currently in the name of a deceased husband (Mr. X) who died testate (with a valid will), leaving all real and personal property to his surviving wife (Mrs. X). She died years later intestate (without a valid will for herself), and she had never probated Mr. X’s will.
Mr. X named Mrs. X as his executrix with no successor executors. He has two living adult children from a previous relationship and shares seven heirs with Mrs. X: one adult child and six adult grandchildren from two deceased adult children.
All heirs have agreed to sell the property. Would it be most efficient to open both estates, deed the property from Mr. X’s estate to Mrs. X’s estate, and then sell the property from her estate?
Loraine’s Answer: This is a complicated situation indeed. You may be onto the right answer already, which is opening both estates. This would mean offering Mr. X’s Will for probate if it’s still possible, and transferring the property to Mrs. X’s estate in accordance with the Will. After administering Mr. X’s estate, the property could be transferred to Mrs. X’s estate, and the administrator of Mrs. X’s estate could sell the property. However, please note that Mr. X’s currently living heirs may not end up agreeing to probate the Will once they realize that his Will transfers the entire property to Mrs. X, and that they are not her heirs and so will receive none of the property from her estate.
Either way, you may need to file a Petition for Letters of Administration for Mrs. X’s estate, both to allow someone to consent to the probate of Mr. X’s Will on behalf of her estate and to allow someone to handle the property once it has been transferred to Mrs. X’s estate. However, without knowing more facts, it’s not possible for anyone to give you complete advice on what you could or should do.
Key Estate Planning Takeaway: Get a consultation with an experienced probate attorney on this situation so that the attorney can ask all of the needed questions. Then, let the attorney advise you on the best way to handle property bequeathed by a Will that has not yet been probated.
This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.
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