Detailed Answer — step-by-step guidance

If the property is owned personally and the owner is competent, you generally can sell it without court involvement. Court approval is usually required when someone other than the outright owner must act for the owner — for example, a personal representative (executor/administrator) administering a decedent’s estate, a guardian or conservator acting for an incapacitated person, or sometimes a trustee in certain trust disputes. This article explains the common steps you will need to take in Delaware when court approval is required (probate/estate and conservatorship situations are the most frequent).

1. Confirm who has authority to sell

• If there is a will: the personal representative named in the will must be appointed (issued letters testamentary) before taking action on estate property.
• If no will: an administrator is appointed by the Register of Wills or probate court (letters of administration).
• If the owner is incapacitated: a guardian or conservator must be appointed by the appropriate Delaware court before selling the property.
• If the property is held in a trust: the trustee usually has authority under the trust instrument; court involvement is generally only necessary when the trustee’s authority is unclear or contested.

For information about probate and fiduciary duties in Delaware, start at the Delaware Code and the Delaware Courts website: Delaware Code, Title 12 and Delaware Courts.

2. Open the proper court case and obtain letters or an order

Before selling estate property you will normally do one of the following:

• File for probate with the Register of Wills in the county where the decedent lived and obtain letters testamentary or letters of administration.
• File a guardianship or conservatorship petition and obtain an appointment and letters of authority if the owner is incapacitated.
• If a trustee’s powers are unclear, file a petition in the Court of Chancery or the appropriate court asking the court to interpret the trust or confirm authority to sell.

Registers of Wills and court forms are available through the Delaware Courts site: https://courts.delaware.gov/forms/.

3. Prepare a petition to sell the real property

The petition (sometimes called a petition for authority to sell real estate, motion to sell, or application to approve sale) should include:

• Identification of the property (legal description and address).
• Why sale is in the best interest of the estate or protected person (e.g., to pay debts including mortgage, to avoid upkeep costs, to distribute proceeds to beneficiaries).
• Proposed sale terms (listing price, sale process, buyer info if already under contract).
• Statement about mortgages, liens, and intended payoff of mortgage at closing.
• Request for the court to authorize the sale and to permit the personal representative/guardian/conservator to sign closing documents and pay the mortgage from sale proceeds.

4. Provide notice to interested parties and creditors

Delaware courts require notice to heirs, beneficiaries, creditors, and other interested parties before approving a sale. The petition will usually specify how notice is to be given and the timeframe. Expect to:

• Serve written notice on heirs, beneficiaries, and mortgage holders.
• Publish notice if required by the Register of Wills or court rules.
• Allow a statutory period for objections or claims.

5. Court hearing and order

The court will schedule a hearing if required. At the hearing the court will evaluate whether the sale is fair, necessary, and in the best interest of the estate or protected person. If the court approves, it will issue an order authorizing the sale and specifying any conditions (for example, that proceeds be held in a fiduciary account until mortgage payoff and distribution or that the sale be subject to confirmation).

6. Obtain payoff information from the mortgage lender

Contact the mortgage lender early and request a written payoff statement (also called a payoff demand) showing the exact amount needed to pay the loan in full as of a specified date, including any prepayment penalties and daily interest accruals. Title companies and closing attorneys will need that payoff figure to complete the seller’s closing statement.

7. Close the sale, pay the mortgage, and distribute proceeds

At closing, the closing agent or attorney will use sale proceeds to pay liens, taxes, closing costs, and the mortgage lender according to the court order. Important points:

• Make sure checks or wire instructions comply with lender’s payoff requirements.
• Obtain lien releases and a recorded satisfaction of mortgage.
• If the sale proceeds must be held (for example, pending resolution of creditor claims), follow the court’s directions for deposit and accounting.

8. File required accountings and final documents with the court

After the sale and payoff, the fiduciary will normally file a final accounting and request approval of distributions. The court will close the estate or continue supervision per its rules. Keep copies of the sale documents, payoff statements, and recorded releases for the court record.

Special situations and additional considerations

• If a buyer is a related party or the sale price is substantially below market value, the court may scrutinize the transaction and could require an independent appraisal or confirmation sale process.
• When the property secures a federal or VA loan, additional lender rules may apply to payoff and reconveyance.
• If there are disputes between heirs or beneficiaries, expect longer delays and the possibility of contested litigation.
• Tax consequences and capital gains issues can arise; consult a tax professional about potential estate or income tax effects.

If you need the specific statutory language that governs probate, fiduciary powers, and creditor notice periods in Delaware, begin with the Delaware Code (Title 12) at https://delcode.delaware.gov/title12/ and then check the Delaware Courts pages and local Register of Wills office for procedural details and forms: https://courts.delaware.gov/.

Helpful Hints

• Gather the property deed, mortgage statement, recent tax bill, homeowners insurance policy, and any trust or will before you begin.
• Get a current market appraisal or broker price opinion if the court asks for an independent valuation.
• Contact the mortgage servicer early for a payoff statement and any instructions for how payoffs must be delivered at closing.
• Use a title company or closing attorney experienced with fiduciary sales and Delaware probate practice.
• Maintain a clear paper trail of notices, filings, and court orders; courts look for strict compliance with notice rules.
• If a buyer wants to close quickly, confirm the court’s timeline: some courts will not permit closing until after required notice periods or hearings are complete.
• Expect other creditors to assert claims—do not distribute remaining proceeds until the court allows it or the statutory claim period has passed.
• When in doubt, schedule a short consultation with a Delaware probate/estate or guardianship attorney to confirm the exact filings and timeline for your county.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Laws and procedures can change. Consult a licensed Delaware attorney for advice specific to your situation.