Hawaii: Selling Estate Real Property When a Co-Administrator Refuses to Sign (Foreclosure Risk)

Detailed answer — what typically happens and the steps to take

When a decedent owned a house and the estate is in administration, authority to sell the property generally flows from the personal representative (administrator or executor) and/or from the probate court. If there are two (or more) co‑administrators and one refuses to sign a contract for sale, you cannot simply proceed on your own as if the property were freely transferable. In Hawaii the probate court has power to resolve such disputes and to authorize sales when cooperation breaks down.

1. Confirm who has authority right now

• Locate the Letters of Administration or Letters Testamentary issued by the probate court. These documents show who is the appointed personal representative and what powers the court already granted.
• If a will named an executor, that person normally has authority specified in the will and under probate law; if the estate is intestate, the court’s appointment controls.

2. Check whether you need a court order to sell

• In many probate administrations, selling real property requires either explicit authority in the will or an order from the probate court that authorizes the sale and confirms the sale price and terms. That protects buyers and creditors and ensures the sale follows statutory notice and confirmation procedures.
• Hawaii’s probate statutes and court practice govern how personal representatives may sell estate property and how courts supervise or confirm sales. For general information about probate administration in Hawaii, see the Hawaii State Judiciary’s probate information: courts.state.hi.us/self_help/probate. For statutory authority, consult the Hawaii Revised Statutes on administration of estates: HRS Chapter 560.

3. If a co‑administrator refuses to sign, file a petition with the probate court

The standard remedy is to ask the probate court for instructions and relief. Typical petitions include:

• Petition for authority to sell the real property (often called a petition to sell real estate or for court confirmation of sale). The court can authorize sale over the objection of a co‑administrator if it finds the sale is in the estate’s best interest.
• Petition to remove or suspend a co‑administrator for failure to perform fiduciary duties or for obstructing administration. Removal is not automatic; the court will evaluate the conduct, notice, and fairness to heirs and creditors.
• Petition to appoint a special or successor personal representative (temporary or permanent) with authority to complete an emergency sale or take steps to prevent imminent loss (such as foreclosure).

4. If foreclosure is pending, act quickly — pursue emergency relief and lender negotiation

• Contact the mortgage servicer immediately to notify them that the borrower is deceased and that the estate is in probate. Ask whether foreclosure is judicial or nonjudicial and request a temporary hold while probate petitions move forward.
• Ask the court for emergency (expedited) relief. Probate courts can grant short‑term authorization to preserve estate property or approve a sale on an expedited basis when a foreclosure is imminent.
• Explore loss-mitigation options with the lender: short sale approval, deed‑in‑lieu, forbearance, or loan reinstatement. Lenders sometimes prefer working with the estate rather than completing a foreclosure that yields less recovery.

5. Practical mechanics if the court authorizes a sale

• If the court approves a sale, it will usually set procedures for notice to heirs and creditors, what paperwork is required, and whether a confirmation hearing is necessary before closing.
• The probate court can allow a sale “free and clear” of certain interests or require proceeds to be held subject to claims. Buyers will want certified court orders and clear title work.
• After sale and confirmation, the personal representative can distribute proceeds according to the probate court’s directions and statute.

6. Timeline and what to expect

Probate petitions take time. If foreclosure is several weeks away, ask the court for emergency scheduling. If the foreclosure sale is sooner, prioritize immediate contact with the lender and request an expedited court hearing. Expect that resolving a contested sale matter may take weeks to months unless the court expedites it.

7. When you might need a temporary or special administrator

If a co‑administrator is uncooperative and time is short, you can ask the court to appoint a temporary or special administrator with limited authority to negotiate with the lender and complete a sale to avoid a loss. That is a common remedy when rapid action is required.

Helpful hints — practical steps to protect the estate and stop foreclosure

1. Gather documents: letters of administration, death certificate, mortgage statements, insurance, title records, and any contract offers.
2. Call the mortgage servicer immediately. Ask for loss‑mitigation options and explain probate status.
3. File the appropriate probate petition right away: petition to sell, petition for instructions, or petition for temporary administrator. Ask the clerk about expedited hearings if foreclosure is imminent.
4. Keep written records of communications with the co‑administrator and lender—these can show obstruction or attempts to cooperate.
5. Consider mediation or negotiating with the co‑administrator if possible—court petitions add time and cost.
6. Get title and payoff quotes so the court and potential buyers know the likely net proceeds.
7. Talk to an attorney experienced in Hawaii probate and foreclosure as soon as possible; timelines can be short and filings must be correct to obtain emergency relief.