an attorney acting as an executor sells a part of an estate in indiana, how is this handled

by Prof. Zena Schinner V Published 2 years ago Updated 1 year ago 10 min read

Can an attorney of an executor sell a property?

The Executor of an Estate is allowed to sell property owned by the deceased person, as long as there are no surviving joint owners or clauses in the Will that prevent selling the property.Mar 2, 2020

Can an executor sell property of the estate without all beneficiaries approving?

The only thing that you need to conclude the sale agreement is the Letters of Executorship which authorises the Executor to sign documents in respect of the sale. The sale of a property out of a deceased estate must be approved by the Master of the High Court.

Can executors sell property before probate?

The short answer is that the deceased's home can't be sold before a grant has been obtained. Although executors derive their authority from the will, they can only prove their rights by taking a grant of probate.

Can a beneficiary stop an executor selling a property?

A beneficiary can not stop the sale of a property but they can hold an executor personally and financially liable if there is a loss to their inheritance.Dec 1, 2021

Which two acts are important when dealing with estate transfers?

Wills Act, Act 7 of1953. Intestate Succession Act, Act 81 of 1987.Feb 28, 2019

Can a deceased estate be sold without probate?

The only time executors can exchange contracts without probate is if they are sure the Grant of Probate will be issued in time for completion. Even then, this option too is considered to be high risk.Feb 16, 2021

What happens if house sells for more than probate value?

Capital Gains can also become an issue if the administration process is prolonged and the final sale price is higher than the probate value. In short, if the property is sold for more than the initial valuation, you could be liable for Capital Gains Tax as well.

Can a willed property be sold?

1. The property can simply be transferred on the basis of the WILL and ONLY THEREAFTER, you can sell /transfer /gift /mortgage /whatever.... with the property, without any further reference to anybody. 2. There is no stamp duty or any other charges that needs to be paid for transferring the property as per the will..

Can you sell a property during probate?

You won't be able to sell the home until probate has been granted. Although you may put the property on the market, contracts can't be exchanged – so your buyer will need to be prepared to wait. It usually takes six to eight weeks for probate to come through, although it can take longer in more complex cases.Apr 26, 2021

Can a beneficiary force a sale of property?

No. All of the inheritors of the house will need to agree before a sale goes ahead. One of the biggest questions around inheriting property with a sibling is if a sale can be forced. The short answer is no; if more than one person has inherited shares, then any sale must have all shareholder's consent.Aug 23, 2019

Can an executor stop a beneficiary?

Can an Executor Remove a Beneficiary? As noted in the previous section, an executor cannot change the will. This means that the beneficiaries who are in the will are there to stay; they cannot be removed, no matter how difficult or belligerent they may be with the executor.May 12, 2021

What happens if executors don't agree?

If two or more executors disagree, it's possible to get an executor removed by the court if it best serves the estate (in other words, to make sure your possessions are distributed as you wanted). When no substitute executor has been named, the court also has the legal right to appoint a replacement.Oct 14, 2021

Who should be the executor of a will?

Therefore, the person chosen to act as an estate’s executor should be someone trustworthy, responsible and in good financial standing.

What are the types of misconduct by executors?

In addition to stealing from the estate, other types of executor misconduct include favoring one beneficiary over another, poor asset management and failing to provide a beneficiary with documentation that he or she has a legal right to receive, to name a few.

What should beneficiaries expect from executor of will?

Beneficiaries should expect to receive regular updates that document how the executor is handling the estate plan. If they become concerned that the executor is taking money from the will, they need to act quickly in order to preserve their inheritance.

What rights do beneficiaries have?

A beneficiary has the right to notification of probate court actions, to view the original will, and to ask the estate’s executor for information and documentation as it relates to the estate’s assets.

What to do if executor of estate is suspected of theft?

Here’s What to do if the Executor of an Estate is Suspected of Stealing. Acting as an executor is an important job. After a person dies, their executor will be performing a variety of legal functions, including selling property, paying creditors, bringing any lawsuits that need to be filed, and, if necessary, reviewing medical records ...

Can you sue the executor of an estate?

Additionally, you can request that the executor be removed, prohibited from taking any more assets from the estate, and prohibited from using funds that have already been misappropriated.

Can an heir take action against an executor?

State laws set a time limit in which an heir may take action against an estate executor. The longer the beneficiaries wait to act against the executor in question, the less likely they’ll be able to recover stolen funds and/or possessions.

What can an executor do?

As the executor of an estate, you are responsible for managing the probate process, which means you’ll be interacting with the probate court and making decisions about the handling of probate assets. You will: Open probate with the court. Identify the deceased’s assets. Provide notice to heirs and interested parties.

What happens if an heir believes you are not properly fulfilling your legal obligations?

If an heir or beneficiary believes you are not appropriately fulfilling your legal obligations, they have the right to file a petition with the probate court to get a full accounting of the estate’s assets or to have you removed as the executor.

What is fiduciary duty?

Your fiduciary duty requires you to treat the estate’s assets as if they were your own and to take good care that the beneficiaries receive the portion of the estate indicated in the will. Parting with assets for less than what they’re worth — for instance, my offering them at a discount to friends — is in direct opposition to that duty.

What happens if a person dies without a will?

If the deceased died without a signed will, the deceased died without a will. No one else can sign it on their behalf, and the estate will be managed in accordance with that state’s laws of intestate succession. Take action to manage the estate prior to being appointed as executor by the court.

What does it mean to carry out all the duties of a deceased person?

Carrying out all these duties means that you can make a lot of the decisions about what happens with the estate since you are managing the deceased’s property and assets until they are distributed to the heirs.

What happens if you violate a law?

Serious violations could also result in your being held in contempt of court or being the subject of a civil lawsuit.

Can an executor act against a will?

There are limits on what an executor can and cannot do. If you’ve been named an executor, a couple basic rules of thumb are that you can’t do anything that disregards the provisions in the will, and you can’t act against the interests of any of the beneficiaries. Sounds pretty straightforward, right?

What is the purpose of an executor in Indiana?

Executors are individuals or institutions named in a will to oversee the transferring of property owned by a deceased person to his beneficiaries after death. The process is referred to as probate and Indiana law places certain restrictions on who may serve as an executor as well as the duties and standards for the executor's performance.

What is the first duty of an executor?

When you pass away, the first duty required of your executor is to open probate. This is done by submitting your will to the probate court in the county in which you lived. Once probate has been opened, it is the job of the executor to contact potential beneficiaries listed in your will and publish notice to creditors in the newspaper. The notice provides a three-month window for creditors to present their claims, or be forever barred. The executor will also need to make an inventory of all of your property, and determine what assets are subject to probate. Probate property is typically all property in your name that does not pass automatically at death, such as life insurance proceeds, payable on death accounts and property held in trust.

What is the fiduciary duty in Indiana?

This standard is known as the fiduciary duty, which requires your executor to always act with good faith, honesty and loyalty. The duty also requires the executor to put the interests of your beneficiaries above his own.

What does the executor of a trust need to do?

The executor will also need to make an inventory of all of your property, and determine what assets are subject to probate. Probate property is typically all property in your name that does not pass automatically at death, such as life insurance proceeds, payable on death accounts and property held in trust.

What happens after probate?

Once all of your probate property has been valued, outstanding debts satisfied and taxes paid, your executor may then distribute any remaining property according to your express directions in the will. Because of the complicated nature of probate, it is not uncommon for executors to retain the services of qualified professionals to provide specialized assistance throughout the process. For example, appraisals of assets might be necessary when the property is difficult to value. In addition, the services of an attorney might be necessary to pursue litigation on behalf of the estate, such as wrongful death actions. After property has been distributed to beneficiaries, the executor will provide a full accounting to the court and a judge typically closes the estate at this time.

Why do executors need to retain professional help?

Because of the complicated nature of probate, it is not uncommon for executors to retain the services of qualified professionals to provide specialized assistance throughout the process. For example, appraisals of assets might be necessary when the property is difficult to value. In addition, the services of an attorney might be necessary ...

What happens after an estate is distributed to beneficiaries?

After property has been distributed to beneficiaries, the executor will provide a full accounting to the court and a judge typically closes the estate at this time.

Why do executors take control of a will?

They often take control because they are designated as the executor under the terms of a will. However, it is important to remember that they are not “in charge” of the estate until the court appoints them in that role, regardless of what a will may say. Talk with a lawyer. A lawyer will be able to assist you with determining what your rights may ...

What is the obligation of the executor of an estate?

Rather, the debts and taxes now become an obligation of the estate of the decedent. This means that the value of a given estate can’t be truly computed until all valid debts, taxes, and costs of administration are paid. The executor is tasked with making sure that all debts, taxes, and costs of administration are paid before assets are distributed.

What are the rights of an estate lawyer?

Your rights are not just limited to inheritance of assets at the conclusion of the estate, but they also include requiring the posting of a bond for the executor to ensure that they administer the estate properly.

Why is it important to understand everything going on in an estate?

It is important that you have a full and complete understanding about everything going on within an estate to ensure that your interests and the wishes of the decedent are protected. Not all assets are under the control of the executor. The executor of an estate, after being appointed by the court, only has control over assets called “probate ...

What is the role of executor in a trust?

The executor is tasked with making sure that all debts, taxes, and costs of administration are paid before assets are distributed. The executor is a fiduciary. It is important to remember that the executor is acting in a position of trust on behalf of the estate and all interested parties.

Why is it important to have an executor?

Since the executor is acting as a fiduciary , it is important that there is no appearance of wrongdoing. This means it is necessary to ensure that all estate assets are protected from loss, theft, damage, or waste. The executor must also ensure that all assets are sold for fair market value.

Why does my estate not get completed?

All too often, estates languish and don’t get completed because the executor, for whatever reason, simply does not make the completion of the estate a priority. They allow the estate to sit inactive. You need to talk with your attorney about things you can do to assist the estate process towards completion.