Selling an Inherited Home or a Home in Probate in Massachusetts

Selling a home after a loved one dies is a mix of paperwork, family decisions and emotion. In Massachusetts, most of the paperwork runs through the Probate and Family Court under the Massachusetts Uniform Probate Code (MUPC), General Laws chapter 190B. This guide walks you through the basics so you know what to expect, who signs what, and how long things can take.

Step one: who has the legal power to sell?

When a homeowner dies, the house usually cannot be sold until someone has legal authority to act for the estate. Under the MUPC, that person is called the personal representative. You may know the older terms “executor” (named in a will) or “administrator” (no will). The court appoints the personal representative and issues papers proving that authority. Buyers, lenders, title companies and closing attorneys will all ask to see them.

There are a few common situations:

• The home was in a trust. If the house was deeded to a living trust, the trustee can often sell without probate. The trust document controls.
• The home was owned jointly with rights of survivorship. The surviving owner usually becomes the sole owner and can sell after recording proof of death. No probate may be needed for the house.
• The home was in the deceased person’s name alone. This is where probate is usually required.

The types of probate in Massachusetts

Timing matters. Under the MUPC, most probate and appointment cases must be started within 3 years of the date of death. If too much time passes, your options to sell become more limited, so it is wise to talk with a probate attorney early.

Do you need a “license to sell”?

This is one of the most important Massachusetts-specific points. Being appointed personal representative does not automatically give you the power to sell the house.

• If the will gives the personal representative a power of sale, the representative can usually sell once appointed, without asking the court again.
• If there is no will, or the will gives no power of sale, the representative generally needs a court license to sell. This is requested with a Petition for Sale of Real Estate (form MPC 210) under General Laws chapter 202.

The court’s checklist for that petition includes an inventory of the estate, a description of the property, a proposed decree, and proof about Massachusetts estate tax. Notice to heirs is required unless all interested persons sign an assent. When every heir agrees and signs, the process is usually smoother.

Estate tax and the “lien” on the house

For deaths on or after January 1, 2023, Massachusetts estates valued at $2 million or less owe no Massachusetts estate tax. Even so, the closing attorney must clear the state’s estate tax lien before the house can be sold. If no estate tax return is required, this is usually done with an affidavit of no filing requirement recorded at the Registry of Deeds. If a return is required and the sale happens before it is filed, the estate can apply for a lien release with Form M-4422, which requires a signed Purchase and Sale Agreement and payment of the estimated tax.

Taxes for the heirs: the step-up in basis

Inherited homes get a major federal tax benefit. According to the IRS, the tax basis of inherited property is generally its fair market value on the date of death (or an alternate valuation date, if the estate elects it). This is often called a “step-up in basis.”

Here is why it matters. If Mom bought the house for $90,000 decades ago and it was worth $650,000 when she passed, the heirs’ starting basis is generally $650,000, not $90,000. If the estate sells for $660,000 after costs of sale, the taxable gain is far smaller than many families fear. The IRS also treats property from a decedent as an exception to the normal one-year holding rule for long-term gains.

When there are several heirs

Many inherited homes go to brothers and sisters together. Common paths include:

1. Sell and split the proceeds. This is the most common choice and the easiest to divide fairly.
2. One heir buys out the others. A current market value helps everyone agree on a fair price. The buying heir may need a mortgage.
3. Keep it as a rental. This works best when everyone agrees on who manages it and how costs are shared.

When co-owners cannot agree, Massachusetts law allows a partition case in the Land Court or the Probate and Family Court. A judge can order the property sold, or let one owner buy out the others. Partition is expensive and slow, so most families do better working out an agreement with help from their attorney.

Cleaning out and preparing the house

• Secure and insure it. Tell the insurance company the home is vacant. Many policies have vacancy limits.
• Keep utilities on and winterize if needed. Frozen pipes are a common, costly problem in empty homes.
• Find important papers such as the deed, tax bills, mortgage statements, and any trust documents.
• Sort belongings before hiring a cleanout company. Keep family items, donate what you can, and then clean out the rest.
• Plan for Massachusetts sale requirements, like the smoke and carbon monoxide certificate from the local fire department, and a Title 5 inspection if the home has a septic system.

You do not need to renovate. Many estate homes sell well “as is” to buyers and investors. Our team can show you the likely price with and without light cleanup, so the family can decide. See our guide on preparing your home to sell for low-cost ideas.

A realistic timeline

1. Weeks 1 to 4: Find the will, meet a probate attorney, gather the death certificate, and file for appointment.
2. After appointment: Secure the house, get a market value, and decide as a family whether to sell.
3. If a license is needed: List the home and sign a Purchase and Sale Agreement subject to court approval, then file the petition.
4. Before closing: The attorney clears the estate tax lien and any title issues.
5. Closing: The personal representative signs the deed, and proceeds go to the estate to pay bills before distribution.

Court timing varies by county and workload, so build in extra time. Learn more about seller closing costs and capital gains when you sell.

How Luis can help

Luis and our team have helped many families sell estate homes across Greater Boston, working side by side with their probate attorneys. We can give you a free market value, coordinate cleanout and access, and explain each step in English or Spanish. Start with a free 15-minute call or request your home value.