When
handling the sale of real estate, identifying the seller is generally a
simple matter. If the real estate belonged to a decedent,
however, this determination of “Who is the Seller?” is not so easy, and
completing “Seller” blanks on sales forms can become a challenge.
When a person dies leaving a valid Will, the terms of the Will provide
direction as to the identity of the seller. The Will may devise the real
property to an individual or individuals, to an organization or other
entity, to a trustee, or to the executor/estate. The “Seller,” then,
would be the devisee(s). If anyone other than the executor/estate is the
seller, and if the sale occurs within two years of the date of death of
the decedent, the executor must join in the sale (unless the estate is
closed and the executor discharged by the Clerk of Court) – but neither
the executor nor the estate is the “Seller.”
When a person dies without a valid Will, he or she is said to have died
“intestate,” and an “administrator” (instead of an executor) is
appointed by the Clerk to collect and distribute the decedent’s assets
and settle the decedent’s debts. Real property of an intestate decedent
vests immediately in the decedent’s heirs, who are determined under the
North Carolina intestacy statutes. In almost all intestate estates the
seller will be an individual or individuals. If there are numerous
individuals, they may arrange to give someone power of attorney to act
on their behalf. The administrator must always join in the sale if the
sale occurs within two years of the date of death of the decedent.
There is a notable exception to the above guidelines: the ownership
rights of devisees’ (under a Will) or heirs’ (under intestacy statutes)
are subject to claims against the decedent’s estate, and North Carolina
statutes permit the executor or administrator to pull the real property
into the estate to satisfy such claims. The executor or administrator
accomplishes this by filing a petition to sell the property, and
prevailing in the required hearing. In that case, the executor or
administrator is the “Seller.”
So, to determine whose name to enter in “Seller” blanks, you will need
to know the identity of the devisee(s) or heir(s), and whether the Clerk
has issued an order allowing the executor or administrator to sell the
property. If the decedent’s estate is represented by legal counsel, the
attorney should be able to provide quick guidance.
