No Court Order Required to Auction Property of Estate
An Executor of an Estate is generally enquired to sell personal property to satisfy debts of the Estate before selling real estate. Absent exceptions, a Court Order is required to authorize the sale. However, if the Will of the deceased granted powers to the Executor to Sell property of the Estate then no Court Order is required. Although this is the generally accepted rule sometimes a Court Order is obtained despite the power granted to sell property without a court order.There are two exceptions to the general rule that an executor cannot sell realty as he or she can sell personalty for the payment of debts of the estate: (1) where there is a testamentary power of sale and (2) a sale under court order. Robert E. Wiliford, Miss. Probate and Estate Administration § 12:1 (3d ed. 2003).
Here, the executrix was authorized to proceed with the sale of the subject property under both of these exceptions.
In his will, Arlan expressly directed Martha, as his executrix, to sell this property. The will directed the manner in which the sale was to proceed, by way of auction. Because Arlan had provided Martha with this express testamentary power of sale, the extent of her authority is governed by the language of the will itself; it is not derived from a statute. Kyle v. Wood, 227 Miss. 717, 723, 86 So.2d 881, 883 (1956).
The testamentary power of sale removed the sale at issue from the statutory scheme that Stone Investment urges this Court to apply. Indeed, the statutes only apply in the absence of such authority to sell. Here, Martha carried out the explicit directions of the will in the precise manner it directed. Therefore, Martha, pursuant to the express testamentary power of sale, possessed the legal authority to sell the subject property consistent with the will's direction.
When an executrix possesses power under the will to sell the land, the sale of such land is not considered a " judicial sale." Davis v. Sturdivant, 197 Miss. 139, 19 So.2d 499, 500 (1944). Therefore, when a valid testamentary power of sale exists, there is no need to obtain a court order justifying the sale. Id.
Here, the executrix was authorized to proceed with the sale of the subject property under both of these exceptions.
In his will, Arlan expressly directed Martha, as his executrix, to sell this property. The will directed the manner in which the sale was to proceed, by way of auction. Because Arlan had provided Martha with this express testamentary power of sale, the extent of her authority is governed by the language of the will itself; it is not derived from a statute. Kyle v. Wood, 227 Miss. 717, 723, 86 So.2d 881, 883 (1956).
The testamentary power of sale removed the sale at issue from the statutory scheme that Stone Investment urges this Court to apply. Indeed, the statutes only apply in the absence of such authority to sell. Here, Martha carried out the explicit directions of the will in the precise manner it directed. Therefore, Martha, pursuant to the express testamentary power of sale, possessed the legal authority to sell the subject property consistent with the will's direction.
When an executrix possesses power under the will to sell the land, the sale of such land is not considered a " judicial sale." Davis v. Sturdivant, 197 Miss. 139, 19 So.2d 499, 500 (1944). Therefore, when a valid testamentary power of sale exists, there is no need to obtain a court order justifying the sale. Id.
Stone In. Co., Inc. v. Estate of Robinson, 82 So.3d 631 (Miss.App. 2011)
Please Login to submit comment.
0 Comments