|PEF Code §§3351 and 3353 set forth the powers of the personal representative to sell or lease the real property of a decedent. Under §3351, unless prohibited by the will, an executor can sell a decedent’s real estate without securing approval of the Court. PEF Code §3352 relates to leasing such property. Under §3356, a personal representative, subject to Court approval, may also purchase real property of a decedent.
A personal representative who has been required to give bond may not receive the proceeds of the sale or involuntary conversion of the decedent’s real property unless either the Court has excused entry of additional security or such additional security has been posted. Accordingly, a bonded personal representative’s listing agreement with a real estate broker should specify that no commission is payable until the Court has approved the petition to fix additional security. The agreement of sale should contain a similar contingency with respect to closing.
Sales have been voided for the personal representative’s failure to secure a Court order. See
Stewart Estate, 22 Fiduc. Rep. 257 (1972). Phila.O.C. Rule 12.10.B sets forth the requirements of the petition to fix or waive additional security for sales made under §3351. See PEPH, Green Book, 4.8.
Special attention should be paid to the requirement that the petition list the terms of the proposed sale, itemize the settlement costs and net proceeds payable to the petitioner, and state the names of all parties in interest and whether or not they join in the petition or consent to the sale. The same bonding company that posted the original security should post the additional security. In addition, the certification required by rule must be annexed as an exhibit to the petition. Otherwise, the Court may require one or more appraisals prior to acting on the petition.
PEF Code §3353 provides for a public or private sale of real estate by a fiduciary where the PEF Code or the terms of the governing instrument do not authorize a sale or where it is desirable that the sale have the effect of a judicial sale, with the resultant discharge of liens. Specifically devised property may be sold under this section, even without the devisee’s joinder. Phila.O.C. Rule 12.9.A sets forth the requirements of the petition for public sale of realty under §3353, while Phila.O.C. Rule 12.10.A states the requirements with respect to private sales. These two (2) rules also apply to sales by guardians of minors or incapacitated persons. See Phila.O.C. Rule 12.10.B, Comments (2) and (3), and Pa.O. C. Rule 14.4.