More often than not, a purchase from an Estate in Massachusetts can offer a “bargain price” element to the purchaser who is involved. The heirs may be anxious to “liquefy” their inheritance, and do not want the inconvenience of having to maintain the real estate in question, including insurance and taxes. There are, however, some title issues which you, as real estate professionals, should be aware of when you are involved in an “Estate Sale”, and I thought it might be helpful to bring these items to your attention:

     1. When there is a Will and an Executor: 

      a. The Executor is a fiduciary. In a word, that means that the Executor must obtain the very best price he, she or it can obtain for the real estate that is being sold. So, as difficult as it may be for some people to understand, in Massachusetts, even if an Executor enters into a Purchase and Sale Agreement for the sale of a piece of real property, the Executor must state that if a higher offer is presented prior to closing, the Executor must accept that offer. This happens rarely, but if you are representing a Buyer, it is important to let that person know that the Executor is not trying to pull a fast one with this language, the Executor is following the law

     b. If the sale transaction takes place within a year of the death of the decedent. The Executor will apply to the Probate Court for a License to Sell. The P & S will be presented with the application. The executor can then complete the transaction with the approval of the Court, and if a creditor does not contest the License, the creditor will have no standing to seek a surcharge from the Executor.

 2.      When there is no Will and no Executor:

    a. While it is never a good thing to do,  many people never execute a Will. That means that their property will pass to their heirs at law, as determined by the intestacy laws of the Commonwealth of Massachusetts. Rarely, if ever, do these laws precisely mirror what the decedent had in mind. Moreover, a deed in this situation must be executed by all parties who have an interest as a legatee under the statute. This can give “grey hairs” to even the most patient conveyancers.

   b. If the sale transaction is to take place within a year of death, there are more problems. A License to Sell will still be required, if the Buyer wants to relieve him or herself from the claims of creditors. A second step must be taken prior to the issuance of the License. Someone must take the role of “Administrator” of the Estate to apply for a License to Sell. This can take time, and at such time as you get a listing from a group of heirs of an intestate estate, I strongly advise that you start the Administrator application process right away.

As this post indicates, the sale of property which was owned by someone no longer living can be complicated and may be fraught with peril for the Buyer. Make sure that you obtain competent legal advice on the correct path early in the game. The other lesson here is to encourage all of your customers to make sure their Wills and other estate planning documents are in order. There is really no easy way to “get there from here” if a valid Will is not in existence.