Selling a House in Probate in Alabama (With a Will)
If you are the executor named in a will, you can sell the house during probate in Alabama once the probate court appoints you. You usually need one of two kinds of permission: an express power of sale in the will (a clause that clearly lets the executor sell estate property), or the court's approval (Ala. Code § 43-2-844). With an express power of sale, you can generally sign the listing and the contract without a court order; without one, the sale closes only after the court approves it.
Alabama law calls the executor the personal representative, and the court's document showing your appointment is called letters testamentary. This guide is for executors named in a will who have a house to sell in Huntsville and North Alabama. For the rest of the estate, see our probate work for executors.
Can an executor sell a house in Alabama without court approval?
Yes, if the will expressly gives the executor the power to sell. Otherwise, a personal representative may sell or mortgage estate property only after the probate court approves (§ 43-2-844).
Whether the will's wording is express enough is a legal question, and the buyer's title company will ask it too, so settle it before the house is listed.
With a power of sale: no court order is needed. You sign the listing agreement and contract as personal representative. The title company may also ask the beneficiaries who inherit the house, and their spouses, to sign the deed.
Without one: your lawyer petitions the probate court, and the sale closes after the court's order.
Either way, watch for two things:
A buyer with a conflict. A sale to the executor, the executor's spouse, agent or lawyer, a company or trust the executor has a substantial interest in, or anyone else whose purchase creates a substantial conflict of interest for the executor can be undone by an interested person who did not consent after fair disclosure. The main exceptions: the will or a contract the person signed before death expressly allowed it, or the court approved it after notice (§ 43-2-841).
Co-executors. Two or more executors generally must act together unless the will says otherwise (§ 43-2-846).
Can you sell a house before probate in Alabama?
Generally, no. Your powers as executor begin when the court appoints you (§ 43-2-831), so wait for letters before you sign a listing agreement or purchase contract. Before then, find the original will, lock and insure the house, and ask a realtor about value.
First, confirm the house goes through probate:
In the person's own name, or co-owned without survivorship wording in the deed: yes, for the person's share.
Owned jointly with right of survivorship, as the deed states: no; it passes to the surviving owner (§ 35-4-7).
Owned by a living trust: no; the successor trustee handles it. See what to do first as a successor trustee.
In another state: that state's law governs, and you will need a lawyer licensed there.
Do the beneficiaries have to agree to the sale?
With a power of sale, the statutes do not require the beneficiaries' consent, apart from a conflict sale. If the will leaves the house to a particular person, selling it changes what that person receives, so get legal advice before you list it. Either way, tell the beneficiaries the plan and the price early.
When the court must approve, the petition names the beneficiaries, and signed consents from the adult beneficiaries simplify the court's review. If a beneficiary objects, expect formal notice and a hearing. If a beneficiary is a minor or incapacitated, the court may also appoint a guardian ad litem to represent that beneficiary in the case.
Steps for selling a house during probate in Alabama
Get letters testamentary.
Secure and insure the house (see below).
Establish the value. A date-of-death appraisal supports the inventory, which values each asset as of the death (§ 43-2-835(a)), and the house's tax basis. If the court must approve, a current appraisal or market opinion helps show the price is fair. You may hire the appraiser and realtor without a court order (§ 43-2-843(17)).
List the house with a realtor.
Sign the purchase contract. If court approval is needed, make the contract subject to it, with time to get the order before closing.
Petition the court, if needed. Your lawyer files the petition with the contract and the beneficiaries' consents and asks the court for an order approving the sale.
Close. You sign the deed as personal representative, along with anyone else the title company requires. The closing attorney or title company handles the rest of the closing.
Deposit the proceeds in the estate account, never your own.
Include the sale in the estate's accounting.
Can the house sell before the creditor claims period ends?
Yes. A sale can close before creditors' time to file claims runs out (§ 43-2-350), because the sale statute sets no waiting period (§ 43-2-844). The proceeds stay in the estate account, or wherever the court's order directs. No distribution can be made until proof of the Alabama Medicaid Agency notice is filed and 30 days have passed since the agency received it (§ 43-2-697(h)). The other deadlines are in the Alabama probate timeline.
Paying the mortgage, taxes and insurance until the house sells
Insurance. Call the homeowner's insurer now and ask about vacancy coverage; many policies limit coverage once a house sits empty. You may insure estate property without a court order (§ 43-2-843(10)).
Utilities. Keep enough on to protect the house and show it, and protect the pipes in winter.
Mortgage. Keep the payments current if the estate can afford it, and keep records. If the will leaves the house to one person, ask which funds should pay, because a house left as a specific gift passes subject to its mortgage (§ 43-8-228). You may pay the mortgage to protect the house even if the lender files no claim (§ 43-2-350(b)); the balance is paid off at closing.
Taxes and protection. While the house is in your possession as executor, you pay the property taxes and the reasonable costs of protecting it (§ 43-2-837). Repairs need court approval unless the will expressly allows them (§ 43-2-844(2)).
Contents. List and photograph them before anyone removes furniture or keepsakes.
Taxes when the estate sells the house
The house's tax basis (the starting value for figuring gain) generally becomes its value at the date of death, so a sale soon after death often produces little taxable gain or loss. Ask the estate's CPA how to report the sale before it closes.
What we handle, and what we do not
We handle the legal and court side: confirming whether the will gives you the power to sell; the petition, consents and order when the court must approve; in a court-approved sale, the personal representative's deed or other court paperwork the closing needs; and the estate's accounting. You and your realtor handle the listing and showings. The closing attorney or title company handles the title search, payoffs, prorations and the closing. We do not buy houses, and we do not serve as executor.
Questions about selling a house in probate
How long do you have to transfer property after death in Alabama?
There is no single deadline to sell a house, but waiting has costs. A will not offered for probate within 12 months does not bind a good-faith buyer who bought from the heirs before the will was offered, without knowing about it (§ 43-8-172). And if the person lived in Alabama, a will not filed for probate within five years generally has no effect (§ 43-8-161). Open the estate promptly.
Do all the beneficiaries have to sign the deed?
After a court-approved sale, the executor's signature as personal representative is usually enough. Under a will's power of sale, the title company may also ask the beneficiaries, and their spouses, to sign. Ask the closing attorney early.
Can a family member buy the house from the estate?
Yes. If the buyer is on the conflict list above, such as the executor or the executor's spouse, follow the conflict rule (§ 43-2-841). In any family sale, a written appraisal and a price every beneficiary has seen help protect the executor.
Talk with a Huntsville probate lawyer
Named executor in a will, with a house to sell? Schedule a consultation with Ty Shepard. He handles probate for executors in Huntsville and North Alabama and will confirm whether your sale needs the court's approval before the house is listed. For the rest of the job, see what an executor does, step by step; for a will probated in another state, see ancillary probate in Alabama.
Ty Shepard is a probate and trust administration attorney at Sparkman, Shepard & Shepard, LLC in Huntsville, admitted to the Alabama State Bar in 2012, with an LL.M. in Taxation. He represents executors named in a will and advises successor trustees in Huntsville and North Alabama. More about Ty Shepard.