Finalizing Probate When the Will Is Outdated and Getting Authority to Sell Estate Property

Disclaimer: This article is educational only and not legal advice. For decisions that affect rights or property, consult a licensed New Hampshire attorney or the probate court.

Detailed Answer

When a decedent’s will is “outdated” you may face two kinds of problems: (A) the will is valid but does not reflect current assets (for example it mentions a house the decedent no longer owned), or (B) family circumstances changed (new spouse or children not mentioned). Either problem can complicate finalizing probate and selling estate real estate. Under New Hampshire probate practice you must identify a valid personal representative (executor or administrator), confirm the representative’s authority to act over the real property, and follow court and title-company requirements before you can close a sale.

Step 1 — Locate and admit the will (or open administration)

If you have the original will, file a Petition for Probate with the probate court in the county where the decedent lived. If there is no will, file to open an intestate estate and ask the court to appoint an administrator. The probate clerk will explain the local filing requirements and required notices. The New Hampshire Judicial Branch has general probate information and local contact details: NH Judicial Branch — Probate.

Step 2 — Get appointed and obtain letters

After the court accepts the will or opens administration, it will appoint a personal representative and issue written authority (often called Letters Testamentary or Letters of Administration). Those letters are the primary proof of authority that banks, title companies, and buyers will require before a representative can sell real property.

Step 3 — Figure out what the outdated will actually does

Carefully compare the will’s terms to current assets. Common issues:

• The will devises “my house,” but the decedent sold that house years earlier and now owned a different house. If the will’s specific gift failed (the item no longer exists), the gift may lapse or the residuary clause or intestacy rules may control.
• Named beneficiaries are deceased or predeceased the testator. That may trigger anti-lapse rules or pass the asset to alternate beneficiaries or the residuary estate.
• New spouses or children born after the will may be entitled to shares under state law unless the will addressed them.

These questions determine who has an interest in the property and whether the will alone provides authority to sell.

Step 4 — Confirm whether the personal representative has power to sell without extra court permission

Some wills grant the personal representative explicit authority to sell estate real estate. If your court-issued letters plus the will expressly grant that power, most title companies will accept a deed signed by the personal representative and evidence of appointment. If the will does not grant an express power, or the asset was omitted or never belonged to the decedent at death, you usually must ask the probate court for an order authorizing the sale.

Step 5 — If needed, petition the court for sale authority or instructions

File a petition with the probate court asking either for (a) an order authorizing sale of the particular parcel, or (b) instructions on distribution when the will is ambiguous or property was not effectively disposed of. In that petition you generally describe the property, explain why sale is needed (e.g., to pay debts, to divide proceeds among beneficiaries, or because the property is burdensome to maintain), and provide proposed sale terms or request authority to sell on reasonable terms. The court may schedule a hearing and require notice to beneficiaries and other interested parties.

Step 6 — Notice, creditors, and obligations

Before or during sale proceedings the estate must address creditor claims, statutory notices, and tax obligations. The personal representative must inventory assets, notify creditors as required by statute and local practice, and ensure debts and expenses (including any mortgage or liens) are properly handled from estate proceeds. A sale without clearing liens or resolving claims can be blocked or result in personal liability for the representative.

Step 7 — Work with the title company and record the deed

Title companies typically require:

• Certified copy of Letters Testamentary or Letters of Administration;
• Copy of the will (if relevant) and court order authorizing the sale (if the will did not expressly give sale power);
• Evidence that liens or mortgages will be paid at closing;
• A probate court order approving the sale if the title company or buyer requests it.

Once closing occurs the personal representative signs a deed conveying title and the deed is recorded at the county registry of deeds.

Practical example (hypothetical)

Anna died with a 1998 will leaving “my house on Elm Street” to her son, Mark. Anna sold the Elm Street house in 2005 and, at death, owned a different house on Maple Avenue. Anna’s will makes no residuary gift. Mark and other heirs disagree about who should get Maple Avenue. Steps to resolve:

1. Locate and file Anna’s original will in probate court and request appointment of the named executor (or ask for administrator if executor is unavailable).
2. The executor obtains Letters Testamentary from the probate court.
3. The executor investigates whether the gift of the Elm Street house failed and whether the Maple Avenue house passes to Mark under the residuary clause or under intestacy rules.
4. If the will is unclear and heirs disagree, the executor petitions the court for instructions and a specific order authorizing sale of Maple Avenue and approval of how proceeds will be distributed.
5. With a court order, the executor lists the property, cooperates with the title company, pays liens at closing, and records the deed executed as personal representative.

Where to find New Hampshire laws and forms

Use the New Hampshire Judicial Branch probate page for forms, local court contacts, and procedural guidance: https://www.courts.state.nh.us/legal/probate/index.htm. For the text of state statutes search the New Hampshire Revised Statutes at the General Court site: https://www.gencourt.state.nh.us/rsa/html/.

Helpful Hints

• Get the original will. Probate courts will not accept photocopies unless certain conditions exist. The original speeds appointment and issuance of letters.
• Talk to the probate clerk early. They can explain local filing steps, fee schedules, and required notices.
• Keep an asset inventory. List bank accounts, real estate, mortgages, liens, and outstanding debts. Title companies and the court will want this information.
• Obtain a title search before listing to uncover mortgages, liens, or judgment creditors that must be cleared at closing.
• If the will lacks a clear power to sell, expect to file a petition for authority to sell and plan for a hearing and notice period.
• Coordinate with the buyer’s title company about exactly what proof they need (letters, court order, affidavits) so you avoid last-minute delays at closing.
• Document every step. Keep copies of petitions, orders, notices, sale contracts, closing statements, and distributions to beneficiaries — the probate court will require final accounting.
• Consider bond. The probate court may require the personal representative to post a bond to protect the estate. If the will waives bond, the court may still impose one in some circumstances.
• If beneficiaries disagree, mediation or early counsel can often save time and legal fees versus contested probate litigation.
• When in doubt about local practice, title company requirements, or how statutes apply to specific family facts (omitted children, predeceased beneficiaries, elective shares), consult a New Hampshire probate or real estate attorney.

For procedural forms and county probate contacts, start at the NH Judicial Branch probate pages: https://www.courts.state.nh.us/legal/probate/index.htm. For the statutory code, use the New Hampshire RSA search: https://www.gencourt.state.nh.us/rsa/html/.

Remember: This information explains general steps and common issues under New Hampshire probate practice. It is not legal advice. If the estate involves significant property, disputes among heirs, or complex tax issues, hire a New Hampshire-licensed probate attorney.