The most common license to sell real estate is the so called general license. It may be used to convert good title during the administration of the estate when the heirs or devisees are unable to give good title, when an executor who has authority to sell in the will desires the approval of the court, when the fiduciary desires to purchase the property and when the heirs cannot agree on a division and wish to avoid a partition.
The procedures are similar to the Petition for License to Pay Debts, Legacies and Charges as to assent or notice and as to whether it is to be at a private sale or public auction. The fiduciary is, of course, under the same obligation to obtain the highest available price.
There are two important distinctions between the general license and the license to pay debts which are established by the statute. First, a petition of an administrator, administrator with the will annexed or an executor for a general license must be filed within one year after the date of the giving of the administrator's or executor's bond. If an administrator de bonis non is appointed within one year after the date of the original appointment of an executor or administrator, the petition must be filed within six months after the date of the giving of the bond by such administrator de bonis non, or within the remainder of the one year period, whichever is the longer period. It has been held that the limitation of time is a part of the right given by the statute and the right is gone when the period permitted for its exercise has passed.
Second, the petitioner must identify by affidavit contained in the petition all persons known to him as having or claiming any interest in said real estate derived from any deed of conveyance or mortgage by, through or under any of the heirs or devisees of the deceased. If there are any such persons, they shall be made parties to the proceedings and given notice. The net proceeds of the sale, after deducting the expenses thereof and such amount as may be required for the payment of debts, legacies and charges of administration, if there is a deficiency in the personal property, shall be paid over to the person or persons who would have been entitled to the real estate and in the proportions to which they would have been entitled had it not been sold.
Petition should be filed on Form CJ-P76. The affidavit as to persons having or claiming interest in the real estate appears on the second page. The affidavit sometimes gives rise to confusion. The affidavit is not intended as a statement of all persons having an interest in the property but only those having or claiming an interest derived from any deed of conveyance or mortgage by, through or under any of the heirs or devisees of the deceased.
Effective March 31, 2012, Massachusetts has adopted the estates provisions of the Uniform Probate Code. However, M.G.L.A. c. 202 remains in effect.
Westlaw, 2015 Thomson Reuters. No claim to orig. US Govt Works.
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