Absolutely. As long as the executor is acting on behalf of the estate, following the specific directions of the will (if it exists) or intestacy laws (if a will doesn’t exist), and performing with a sense of fiduciary duty, selling personal property or belongings is a necessary and natural part of the estate settlement and probate processes.
When an executor can sell personal property
An executor's, personal representative’s, or executrix’s job is to carry out a will’s wishes if it exists, or to follow the laws that govern what happens to peoples’ stuff when someone dies intestate, or without a will.
In either scenario, the executor has a legal obligation to carry out the distribution of assets and resulting inheritance to all beneficiaries as defined. This is not a choice — it is a legal responsibility with criminal consequences if not executed with proper care and intent.
For example, a will may say to give particular pieces of art to a specific person or sell a vehicle or boat and give the resulting cash from the sale to charity. Or in the case of intestacy law, a state may require that all personal property be divided in equal percentages among immediate heirs and next of kin. Those assets can be sold and split monetarily or divided in a way that all beneficiaries feel good about.
The executor can’t just decide to sell that art or not give it to the charity. They must follow the instructions.
If there are disputes or suspected foul play involved, then the probate court, probate clerk or probate judge will handle them and make the final calls on how to move forward.
Can an Executor Sell Personal Property Without Beneficiaries Approving?
Probate usually involves selling various assets, including real estate, furniture, vehicles, boats, art, and other personal belongings for cash and then adding that amount to the estate account that will eventually be distributed to beneficiaries after all debts and taxes have been paid.
If an estate cannot cover its debts, then the executor is legally obligated to attempt to satisfy them before distributing inheritances.
As a general rule, the distribution steps within the probate process follow this pattern:
- The estate assets are collected
- Debts and taxes are paid from the estate assets
- The remaining assets are distributed to the beneficiaries according to the will
This means that there may be cases where beneficiaries thought they were going to get something, say a car, but that car had to be sold to pay off debts. Unless that car was passed through a trust or some other financial instrument that allows it to avoid probate by being considered a non-probate asset, those beneficiaries are out of luck.
In these cases, it may seem like the executor is taking away something from a beneficiary, but they are simply following the law — and it is ultimately the mistake of the testator (person who created the will).
What to do if you think an executor is abusing their position
If you think an executor is abusing their position by ignoring certain constraints or demands in the will and are trying to cheat the system, you have the option of filing a complaint with the probate court to raise a formal dispute.
We highly recommend consulting and hiring a probate lawyer before moving forward with a dispute, though. This can drag out probate for months, delaying inheritances, and become pretty expensive. In other words, you want to make sure it’s worth it before formally raising a red flag.
An example of when an executor would sell personal property or belongings
Judy died last month without a will, or intestate. She lived in Santa Barbara, California for the last 29 years, had no surviving spouse, and left behind 2 surviving children (a third child, Jackie, had passed away a decade earlier leaving 2 grandchildren behind). The two surviving children, Jane and Bob, decided to get probate started ASAP because Bob was in the process of searching for a house to buy and could use some cash for a down payment.
Because Judy died without a will, there was no appointed executor. Jane decided to step up and become the executor because she had more time (and truthfully was always better with numbers and organization than Bob). Jane looked up Santa Barbara’s probate court in a probate court directory and flew out to initiate probate. She got into town, filled out the petition for probate form, and gave it to the probate court. The probate court approved her and officially named her executrix (female executor) or personal representative of the estate. She also received her letters testamentary, giving her the authority to open/close accounts and handle all aspects of Jane’s estate.
One of the first things Jane did was file notice to creditors before starting to sell her mother’s house since no one wanted to live in it. After selling the house for $200k, a creditor contacted Jane, and Jane discovered her mother had a massive debt to pay off that no one knew about. This debt was for over $225k and was part of the fallout of Judy’s jewelry business from a few years earlier.
Because creditors get paid before beneficiaries, Jane had to give all $200k from the house to this creditor, but the estate was still short. Even though they wanted to keep some of their mother’s jewelry, they decided to sell more of it to cover the remaining $25k.
After all the debts and taxes were paid, Jane divided up the remaining belongings and cash from other sold assets and gave them equally between herself, her brother Bob, and split the third remaining share that would have been Jackie’s between George and Sandra, Jackie’s two surviving children according to California’s intestacy laws.
After all of that work, Jane took a much needed vacation to Treasure Island to scatter her mother’s ashes and take some time for herself.
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How Much Does Probate Cost? Estimates and strategies to reduce the cost of probate.