Disclaimer

This is general information and not legal advice. I am not a lawyer. For specific guidance about your situation, consult a Massachusetts probate attorney or the Probate and Family Court.

Detailed Answer — Selling Real Property of a Decedent in Massachusetts

When someone dies owning a home with a mortgage, the loan does not disappear. The mortgage remains attached to the property, and the estate (through the personal representative) must address the debt before or at the time of sale. Massachusetts law gives a personal representative authority to manage estate assets, including real estate, but the procedure and requirements depend on how the property is titled, whether there is a valid will, and whether the representative has been appointed by the Probate and Family Court.

Who can sell the house?

If a personal representative (executor or administrator) has been appointed by the Probate and Family Court, that person acts for the estate. The appointment gives them authority to collect assets, pay debts, and—unless limited by the will—to sell estate property when necessary to pay debts or to carry out the will’s terms. See Massachusetts probate law at Chapter 190B of the Massachusetts General Laws for the probate framework: M.G.L. c. 190B. If no appointment has been made and the decedent’s name alone is on the deed, nobody can legitimately sign a deed to convey clear marketable title until the court issues authority.

What about the mortgage?

The mortgage survives the borrower’s death. The lender remains entitled to be paid from the property or other estate assets. In a sale closing, the usual process is:

• The buyer’s closing agent requests a mortgage payoff statement from the lender.
• Sale proceeds are used at closing to pay off the outstanding mortgage balance so the buyer receives clear title.
• If the sale price is less than the mortgage balance, the lender must agree to accept less (short sale) or the estate must provide additional funds to clear the mortgage, or the lender may retain the right to pursue a deficiency claim against the estate or heirs (subject to estate law and available assets).

Because the mortgage lien attaches to the property, buyers will expect a mortgage payoff and release at closing. A sale cannot transfer clear title until the mortgage is satisfied or otherwise removed.

Do you need court permission to sell?

Often a named personal representative with normal powers can sell estate real property without a separate court order. However, the Probate Court may need to authorize a sale in some situations, including:

• No appointed personal representative yet (no authority to sign deeds).
• The will (or estate circumstances) limits the representative’s powers.
• There is a dispute among heirs or creditors.
• The estate lacks sufficient personal (non-real) assets to pay debts and it is necessary to sell real property to pay creditors; sometimes the court issues a license to sell to protect parties.

Practical next steps typically include obtaining the personal representative appointment (a Certificate of Appointment or letters testamentary/administration) from the Probate and Family Court. The appointment document proves authority to contact lenders, sign contracts, and close a sale. For information about the Probate and Family Court and estate administration, see the Massachusetts Trial Court resources: Massachusetts Probate & Family Court and the state guide to estate administration: Estate Administration & Probate Guide (Mass.gov).

Special situations and exceptions

Several situations can change the process:

• Joint tenancy or a deed with right-of-survivorship: property passes to the surviving joint owner outside probate, so the surviving owner can usually sell without Probate Court involvement.
• Property held in a living trust: the trustee (not the probate process) handles sale according to trust terms.
• Small estates: if the house’s value is low and statutory small estate procedures apply, simplified steps might be available.
• If the estate cannot pay mortgage payments and foreclosure is imminent, act promptly; the lender can begin foreclosure despite probate proceedings.

What if sale proceeds won’t cover the mortgage?

If the property sells for less than the mortgage balance, options include:

• Negotiate a short sale with the lender (the lender must approve accepting less than full payoff).
• Use other estate funds to cover the deficiency (if available).
• Allow the lender to pursue a foreclosure (not usually desired) or pursue a deed-in-lieu of foreclosure if the lender agrees.

Creditors, including mortgage lenders, must file claims against the estate for unpaid debts within the timelines the Probate Court sets. The handling of creditor claims follows the probate claims process under Massachusetts probate law (see M.G.L. c. 190B).

Hypothetical example

Suppose Jane dies owning a house with a $200,000 mortgage and some modest personal property. Her will names her daughter, Maria, as personal representative. Maria opens probate and receives letters testamentary from the Probate and Family Court. Maria lists the house for sale. At closing the buyer’s settlement agent obtains a payoff statement and uses funds from the sale to pay off the $200,000 mortgage and the closing costs. The remaining proceeds become part of Jane’s estate for distribution under the will after paying any other valid creditor claims and estate expenses.

Helpful Hints

• Obtain the Certificate of Appointment (letters testamentary/administration) before negotiating a sale; title companies and lenders will want to see it.
• Contact the lender early and get a written payoff statement and a list of steps they require at sale.
• Talk to the Probate Court clerk if you are unsure whether court permission is required; local court staff can explain filing steps and forms.
• If the mortgage balance exceeds expected sale proceeds, contact the lender about a short sale or negotiate alternatives before listing.
• Keep clear records: inventory estate assets, document all communications with lenders, and keep receipts for estate expenses and repairs charged to the estate.
• Consider hiring a probate attorney or an estate transaction attorney if the estate has creditor disputes, an upside-down mortgage, or conflicting family claims.
• Remember that property held jointly or in trust may not be subject to probate—check the deed and trust documents before proceeding.
• Use official Massachusetts resources for forms and procedural guidance: Probate & Family Court (Massachusetts Trial Court) and the state’s estate administration guide (links above).

Relevant Massachusetts statutes and resources (general links):

• Massachusetts Uniform Probate Code (general probate law): M.G.L. c. 190B.
• Massachusetts real property laws (for general conveyancing and liens): M.G.L. c. 183.
• Probate & Family Court — Massachusetts Trial Court: Massachusetts Probate & Family Court (Mass.gov).
• Estate administration and probate guide: Estate Administration & Probate Guide (Mass.gov).

If you want, provide a short description of your situation (who is named on the deed, whether there is a will, and whether someone has been appointed personal representative), and I can outline the likely next steps and documents you will need to share with a probate attorney or the lender.