Sales By Estates Of Decedents

“Death and taxes and childbirth. There’s never any convenient time for any of them.”
~Margaret Mitchell

A land owner dies possessed of real estate in the State of North Carolina. May the personal representative of the Estate of the decedent sell the real estate? Do the heirs have to sign the deed? What about with testate estates? These are questions we frequently receive. The answers can be as complicated as the Estate matters themselves, but here are some general guidelines:

Intestate Estates (Decedent died without a Will)

If the funds arising from the sale of the real estate are needed to complete the administration of the Estate (i.e., pay debts), the administrator can sell the real estate with a Court order arising from a Special Proceeding (Court action). Otherwise, the intestate heirs and the administrator of the Estate will be required to sign the deed and all of the usual seller closing documents. Absent special circumstances, the spouses of the intestate heirs will also have to sign the deed.

Testate Estates (Decedent died with a Will

The Executor can sell the real estate without joinder of the devisees (beneficiaries under the Will):

• If the Will directs the Executor to sell the real estate in his discretion; or
• If the Will devises the title to the real estate to the Executor and either expressly states he has the power to sell the real estate or incorporates the powers set forth in NCGS §32-27.

If the Will devises the real property to the devisees and incorporates the powers set forth in NCGS §32-27, then the Executor may not sell the real estate without the devisees signing the deed unless the Executor has obtained a Court order.

If the Will devises the real property to the devisees and specifically states that the Executor has the power to sell real estate, then generally speaking, the Executor may be able to sell the real estate without the devisees signing the deed; however, frequently, title insurance companies are reluctant to issue title insurance unless the devisees sign the deed. (Please note that there is an on-going debate among real property attorneys on this issue).

Under any of the scenarios set forth above where the devisees must sign a deed, again, absent special circumstances, the spouses of the devisees will also have to sign the deed.