July 21, 2010 § 6 Comments
[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year. Used with his permission.]
Vesting of title.
Real property vests directly in the heirs in an intestacy. Parker v. Newell, 245 So.2d 575 (Miss. 1971). It vests in the devisees in a testate estate. Anderson v. Gift, 126 So. 656 (Miss. 1930). Also See, In Re Estate of McRight, 766 So.2d 48 (Miss. App. 2000).
Even though the real property passes directly to the heirs or devisees, and not into possession of the Administrator or Executor (unless the Executor is directed by the will to sell the real property), it is subject to the claims of creditors and payment of estate expenses. The rules of abatement govern the order in which assetss of the estate must be first applied to such claims and expenses. Gordon v. James, 39 So. 18 (Miss. 1905); §§ 91-7-91 and -191, MCA.
Authority to sell real property.
When a petition to sell real property to pay debts is filed, all parties interested shall be cited by personal summons or publication. § 91-7-197. The burden of proof is on the petitioner to show that the land must be sold in preference to the personal property. Brown v. McAfee, 421 So.2d 1061 (Miss. 1982); Blum v. Planters’ Bank & Trust Co., 122 So. 784 (Miss. 1929). In such instances the Executor or Administrator would generally be the petitioner.
A will may grant the Executor the express authority to sell the real property. Glidewell v. Pannell, 130 So.2d 288 (Miss. 1930). If the Executor under the will is specifically instructed to sell the real property, there is no requirement for court approval. Davis v. Sturdivant, 19 So.2d 499 (Miss. 1944).
Execution of the deed.
If the property has vested in the heirs or devisees, the Administrator or Executor should not sign the deed. See the citations above. There is no title in the Administrator or Executor to convey. The heirs or devisees sign the contract, exeecute the deed, and receive the cash proceeds.
There are, however, two instances in which the personal representative will sign the deed. First, if the Executor is given the power of sale by the terms of the will, he or she should execute the will. Second, if the sale is by court order, the Executor or Administrator should sign the deed. §§ 91-7-187, -189, and -191, MCA. The practical effect of sale by court order is to divest the title out of the heirs or devisees, as the case may be.
Necessity of bond.
When real property is sold pursuant to a decree of the court, the Executor or Administrator shall execute a bond equal to the proceeds of the sale of the land. § 91-7-205, MCA. This code section does not apply to a sale by the heirs or devisees in whom title has vested.
There is an exception to the requirement of bond. If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficioaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond. § 91-7-205, MCA.
If an Executor or Administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land. § 91-7-207, MCA. An early case held that failure to give the bond voids the sale. Buckner v. Wood, 45 Miss. 57 (1871).