First: who can sign the deed
Real estate held only in the dead person's name usually needs probate before it can be sold. The court appoints a personal representative (the old word was executor), and a sale needs a representative who has the power to sell. Informal probate has no hearing; formal probate goes before a judge. See probate in Massachusetts: informal vs formal and the executor checklist.
The general rule is that probate has to be started within 3 years of the death; after that, a late and limited representative cannot get a license to sell the real estate. Do not let a building sit.
If the deed names the heirs together, or the property was in a trust, the route is different. Ask an estate attorney, because the answer turns on the deed.
The tenants during the estate
Tenants have rights whether or not the owner is alive. Keep collecting rent, keep the building insured, and keep the heat and repairs going. The deposit law covers a transfer "by sale, assignment, death... or otherwise": each deposit and its interest must go to the successor owner (MGL c.186 s.15B). Do not mix deposits with estate money. See selling with tenants in place.
Do not try to clear the building because the owner has died. Tenancies at will have notice rules (MGL c.186 s.12) and written leases continue.
Your options
| Option | What it means | Watch for |
|---|---|---|
| Sell during probate | The personal representative lists or sells with the power to sell | Other heirs, creditors' claims, a timeline set by the court process |
| Keep and rent | The estate or the heirs keep the building and the rent | Insurance for a building you do not live in, repairs, lead rules for a rental (sell or rent calculator) |
| Heir buys out the others | One heir takes the building and pays the rest their share | Needs a valuation and financing; talk to an attorney |
Taxes that matter for a building
- Estate tax: a Massachusetts estate tax return is required when the gross estate is over $2,000,000 for deaths on or after January 1, 2023 (Mass.gov). A building can push a modest estate over the line.
- Capital gains: heirs generally get a stepped-up basis to the value at death, which can leave little or no gain if you sell soon. See inherited house taxes and stepped-up basis.
- Deed excise tax: $4.56 per $1,000 of price, normally paid by the seller (guide).
Lead paint and an old building
If the building was built before 1978, the lead notice goes to the buyer before the P&S is signed, and the new owner has 90 days to delead or reach Interim Control if a child under 6 will live there. You do not have to remove lead to sell. See lead paint when you sell.
Emptying the owner's unit and the basement
An inherited building often has a full owner's unit, attic and cellar. JUNKRUN is owned by the same people as Home Options MA. If you choose a cleanout, we may earn money from it. No obligation to use it. See JUNKRUN estate cleanouts. No obligation. Do not throw away papers until the attorney has seen them; leases, rent records, deposit records and tax bills matter to the sale. See also whole-house cleanout.