If you own real estate and have an estate plan, hopefully the attorney who assisted you discussed a direction of sale with you. This blog post will examine how a direction of sale works and some potential consequences of not including a direction of sale in your will.
A direction of sale is a specific authorization in a will giving the personal representative the power to sell or convey specific real estate listed in the will. When you consider how to distribute assets upon your death, including a properly drafted direction of sale can save time and money for those who handle your estate. On the other hand, when a will does not contain a clause directing the sale of the testator's or testatrix's real property, there are further steps that must be taken to properly administer the decedent's estate.
One of the potential consequences for not including a direction of sale is that the personal representative of the estate will need to petition the court enter an order granting the personal representative exclusive possession and a power of sale over the real property of the decedent, in accordance with § 64.2-105-6 of the Code of Virginia. This process may involve filing a motion with the court, setting a hearing and ensuring that each interested party gets notice of the hearing. If the matter is contested by an interested party, the case may require litigation if it cannot be settled outside the courtroom. If it is uncontested, once the order has been entered, the petitioning party may move forward with the sale of the real property.
Another potential consequence for not including a direction of sale is a partition suit, discussed in Article 9 of Title 8.01 of the Code of Virginia. Partition is “the division between two or more persons of land which they jointly own as coparceners, joint tenants or tenants in common” (Martin v. Martin, 112 Va. 731, 72 S.E. 680 (1911)).
Although executors with the power to sell are “compellable to make partition and may compel partition”, this only applies “in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances.” A power of sale is properly exercisable when an estate does not have sufficient assets to pay a mortgage or to pay other debts and expenses of the estate, in accordance with § 64.2-532 of the Code of Virginia.
These potential consequences are only examples, based on cases we have handled. Every case has its own unique facts and there are no guaranteed outcomes. If you or someone you know has questions about their estate plan, about whether you need a motion for exclusive possession and the power of sale, or about how a partition suit may help you, call our office at 757-967-8782 to schedule a consultation to discuss your concerns.
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