When an owner of real estate like a home, condo, or farmland dies, the property is often sold through the Ohio probate process. The ease or difficulty of selling the real estate in probate depends on whether the person who died (called the “decedent”) had a will (testate) or died without a will (intestate). In either case, a probate attorney is often asked to assist the executor or administrator with the process. This series of posts explains how to sell real estate in Ohio probate court.
What Is The Difference Between A Beneficiary And An Heir of A Probate Estate?
If the decedent died owning the real estate in his or her name only, or if the decedent owned the real estate as tenants-in-common (rather than as joint tenants with rights of survivorship), the title to the real estate the decedent owned immediately “vests” in the name of the “beneficiaries” that are entitled to inherit it under the will. If the decedent did not have a will, then the title vests immediately in the decedent’s “heirs,” the people who Ohio law says will inherit the property.
In both situations, if the real estate must be sold to pay estate debts, the rights the beneficiaries or heirs have to the real estate are subject to divestment. This means, the beneficiaries or heirs might not receive the real estate if it must be sold to pay legally enforceable debts.
What Is An Estate Fiduciary?
The person in charge of the probate process is referred to as “the estate fiduciary.” When a person dies with a will and has nominated a person to handle the probate process, the fiduciary is called an “executor.” If the decedent died without a will, then the person appointed by the court to be in charge of the estate is called an Administrator. For more information, visit this post titled “How Do You Become Executor of A Probate Estate?”
Can An Executor Sell Real Estate That Is In Probate?
It is usually much easier for the executor to sell real estate when the decedent created a will. This is because most wills give the Executor the power to sell the real property. If the will contains such a “power of sale,” then the Executor can sell the real estate under terms that are in the best interest of the estate by signing a deed without the prior approval of the probate court.
Giving your executor the power to sell real estate will save a lot of time and money. Use these links to schedule an in-person meeting or Zoom meeting to create or update your will, trust, and/or other estate planning documents.
Can An Administrator Sell Real Estate That Is In Probate?
If the decedent did not have a will (or the will did not specifically say the Executor has the power to sell real estate), then the real property may only be sold 1) if all beneficiaries or heirs consent, or 2) though a court-supervised “land sale” proceeding. These rules are set forth in Chapter 2127 of the Ohio Revised Code, entitled “Sale of Lands.”
Selling Real Property In Probate With Consent Of All Beneficiaries and Heirs
If the estate fiduciary wishes to sell the real estate by consent, he or she must obtain the consent of the surviving spouse and all of the beneficiaries of the will (or heirs if there is no will). If all consent, then the fiduciary may sell the property for no less than 80% of the appraised value.
Selling Real Property In Probate Without Consent of All Beneficiaries and Heirs
However, if even one of these people refuse to consent, the fiduciary will not be able to sell the property without conducting a land sale. Similarly, if one of the beneficiaries or heirs is a minor (under age 18) they are deemed unable to give consent, so a land sale will be required.
Hopefully, this post helps you to begin to understand the basics of how to sell real estate in Ohio probate court. The next post will discuss the details of Ohio land sale proceedings, which are sometimes called an “action to sell real estate.”
Do you need help conducting a probate land sale proceeding to sell a home, condo, farmland, vacant land, or other real estate? Golowin Legal can help. Call us today at (614) 453-5208 to schedule a meeting or Zoom conference. Visit the Golowin Legal probate page for more information.