Executor’s power to sell real estate.
By: Ryan C. Young
This is a very contentious issue that I have run into many times in my legal practice. The rules can often be confusing. Any time to you have multiple individuals co-owning real estate together, it invites disaster. Real estate is also very different from other assets in that beneficiaries can feel a deeply personal connection with the real estate of the deceased.
Does the Will give the Executor the power to sell?
There are several questions to consider when analyzing whether the executor has the power to sell the real estate over the complaints of the beneficiaries. Firstly, any analysis should consider whether the executor in fact has the power to sell. To do this, you will need to look to the statement of powers granted to the executor in the last will & testament.
Who has title to the real estate of the deceased?
Under Virginia law, “property drops like a rock.” Broaddus v. Broaddus, 144 Va. 727 (Va. 1925). Simply stated, title transfers (vests) automatically at the time of death. But, who does title vest in? When a person dies without a will, the answer is simple; the heirs at law become vested in the property at the time of death.
When a person dies with a will, the parties will have to look to the language of the Will itself for direction. If the Will expressly states that the Executor has a requirement to sell the real estate and distribute the proceeds, then title to the real estate vests in the Executor and there little chance that the beneficiaries could stop a sale. See 2-25 Harrison on Wills & Administration for VA & WV § 25.07. However, if the Will does not include a requirement of sale, the Executor may have the power to “divest” the beneficiaries of their rights in the property through a “naked” power of sale. Yamada v. McLeod, 243 Va. 426 (Va. 1992). This power is described above and must be expressly stated in the will.
Of course, there are other considerations and each case presents unique facts. These questions often tend to be rather complex and a lot of money is at stake (not to mention family relations). I would welcome anyone concerned with their rights in real estate to give me a call to discuss what is important to you.
Every case presents unique facts and no outcome can be guaranteed by an attorney. Give my office a call to discuss your particular needs or concerns.
Estate & Fiduciary Litigation | Law Office of Ryan C. Young, PLLC | Richmond, Virginia