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Thursday, August 14, 2014

Can an executor sell a property to his friend without telling the beneficiaries?

A comment left by a reader touched on the subject of an executor selling an estate property to a friend. Many beneficiaries are concerned when they see an executor undertaking transactions with estate assets when the transactions don't appear to be what the law calls "at arm's length". In other words, beneficiaries worry that the executor will be more interested in helping his or her friend than in looking after the welfare of the beneficiaries.

Since this is a very common concern, I thought it would be a good idea to talk a bit about this. Here is the note I received from the reader: "Can an executor sell a property in the estate to his friend/relative without asking/telling the beneficiaries?"

As you can see, this question is not only about the powers of the executor, but also about the powers of the beneficiaries when it comes to governing the executor's actions.

The executor's job when it comes to selling an estate asset such as real estate is to get the best deal he or she can on behalf of the estate, and to do so within a reasonable time. There are several variables at play, particularly market conditions. Beneficiaries might be shocked or disappointed if a property is sold for, say, less than the deceased had paid for it ten years earlier, but if the market has dropped, there is nothing the executor can do about that.

An executor has the duty to pay any debts outstanding that are secured by the property (such as liens or lines of credit) and if necessary, renovate or clean the property to make it more salable.

However, there is no rule that says the person who buys the property from the estate cannot be a relative or friend. As long as the executor is truly selling for a reasonable market price and not giving someone a "deal" based solely on the relationship, then there is no reason not to sell to a relative or friend. In fact, this is sometimes very advantageous to the estate because it may save the costs and delays associated with advertising the property, showing the property to prospective buyers, and perhaps the realtor's commission as well.

Similarly, there is no rule that says an executor has to tell the beneficiaries who the buyer is, or ask for their approval of the buyer. Selling the property is up to the executor, and this includes selecting the most appropriate purchaser.

To be clear, the beneficiaries have the right to object if the executor is under-valuing the property, because selling at too low a price directly affects what the beneficiaries are going to inherit. Under-valuing breaches the executor's duty to maximize the estate. But the beneficiaries do not have the right to approve or disapprove of a specific buyer.






5 comments:

  1. Lynne, Thank you for the information on your blog. We have similar situation. I am a beneficiary and the executor sold the home without telling anyone. We were shocked. We later found out he sold it to a friend (nobody in the family knows him). Since the market was up, we feel he sold it cheaper than its value. He said he didn't. Maybe we would have bought it for the same price. Is there anything we can do?

    ReplyDelete
    Replies
    1. That depends on what it is you want to do. You can't make him rescind the deal so that someone in the family can buy it.

      Your options fall within the concept that as beneficiaries, you have the right to insist that the executor does not cause any financial loss to the estate. Selling the house, whether to a friend or a stranger, at a price below fair market value would of course be a loss to the estate.

      It would be helpful if the executor would show you the valuations or estimates he received from realtors before he listed the house. I always advise executors to get three, but not all of them do.

      Note that asking the executor to show you the valuations will probably put his nose out of joint, if he is as defensive as most executors are. But if he has valuations that show that he sold the house for the right amount, then the discussion about selling it too cheaply should be over.

      If the executor is not able to back up his actions with proper paperwork, your steps are as follows. Fnid out the real market value of the house (no guessing; it has to be independent information). Confront the executor and request that he repay the estate either by foregoing his executor fee, or by paying money into the estate. When he refuses to do either of those things, you approach the court for an order that will compel him to do so.

      Lynne

      Delete
  2. This information is very helpful. Thank you. By the way, every beneficiary should read the book you wrote. It contains so much information and is very easy to understand. I think beneficiaries need to be aware and informed of the process. It contains a lot of information that would never have crossed my mind. You're helping a lot of people...Thanks.

    ReplyDelete
  3. Hey Lynne, My friend too faced a similar issue The executor sold their property without telling anyone . heir family were really shocked and they consulted a real estate lawyer (http://www.gcylaw.com/real-estate-service ) and filed a suit against the executor .

    ReplyDelete
    Replies
    1. Since the executor has the right to sell the property without telling anyone, there must have been some other issue, such as the executor selling at too low a price. As I said in my original post, the executor doesn't have to consult anyone when he sells the property and being shocked is not grounds for a lawsuit. I appreciate that you wanted to put in a plug for the lawyers whose page you mentioned, but please do not make it sound as if the executor can be sued for not consulting about the sale of the estate property.

      Lynne

      Delete

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