2015 Connecticut General Statutes
Title 45a - Probate Courts and Procedure
Chapter 801b - Probate Court Procedures
Section 45a-164 - (Formerly Sec. 45-238). Sale or mortgage of real property.

(a) Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after such notice as the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of such person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such temporary administrator, administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application.

(b) The court may empower the conservator, guardian, temporary administrator, administrator, executor or trustee to execute a conveyance of such property or to execute a note and a mortgage to secure such property upon giving a probate bond faithfully to administer and account for the proceeds of the sale or mortgage according to law, unless the court finds that there is in force, for such fiduciary, a probate bond in an amount and with security determined in accordance with section 45a-139 or unless the bond is dispensed with in accordance with section 45a-169. The application shall set forth a description of the property to be sold or mortgaged.

(c) After a hearing, the court may authorize that the property be sold to the fiduciary either directly or under the provisions of section 45a-167, except that if a public sale is ordered, the fiduciary may be the purchaser only if the sale is made under section 45a-167. In the case of any proposed sale to a fiduciary, any notice shall indicate that the fiduciary is the proposed purchaser.

(d) If any person having an interest in such real property is not in being or is not ascertained or is under a disability, the court shall appoint a guardian ad litem to represent the interests of such person at the hearing. A guardian ad litem shall not be necessary if such person is represented by a guardian or by a conservator, unless the sale of the property is to such guardian or conservator or such guardian or conservator has a potential conflict as an applicant or otherwise.

(e) The order and the sale or mortgage under the order shall be conclusive upon all persons then or thereafter existing whose interests have been so represented.

(1949 Rev., S. 7022; P.A. 80-227, S. 18, 24; 80-476, S. 80; P.A. 83-87, S. 3; P.A. 91-49, S. 1; P.A. 96-91, S. 1; P.A. 98-219, S. 22.)

History: P.A. 80-227 deleted references to overseers appointed under Sec. 54-37 in provision re powers to make application and to execute conveyances and clarified requirement for probate bond by allowing for possibility that such a bond is already in force or has been waived, effective July 1, 1981; P.A. 80-476 divided section into Subsecs., restated provisions and generally substituted “property” for “estate”; P.A. 83-87 inserted new Subsec. (c) re sale of real property to fiduciary, relettering former Subsecs. (c) and (d) accordingly; Sec. 45-238 transferred to Sec. 45a-164 in 1991; P.A. 91-49 amended Subsec. (a) by deleting references to incapable person and amended Subsec. (d) to provide that a guardian ad litem shall not be necessary if person is represented by guardian or conservator, unless sale of property is to guardian or conservator or guardian or conservator has potential conflict of interest; P.A. 96-91 amended Subsecs. (a) and (b) by adding temporary administrators to list of persons who may be authorized to sell or mortgage real property; P.A. 98-219 amended Subsec. (a) by deleting “public notice and other notice which” and inserted “such notice as” and amended Subsec. (c) by deleting “sent to interested parties and any public notice”.

Annotations to former section 45-238:

Sale of real estate under former statutes: Sale of insolvent estate cannot be attacked by showing that claims allowed by commissioners were unjust. 2 R. 270. Court cannot appoint person other than administrator to sell real estate. 4 D. 140. Power to sell land does not carry with it power to create easement in other land. 5 D. 92. Return not necessary to validity of sale. Id., 213. When decree invalidating order of sale not a bar to procuring subsequent order. 1 C. 53. Order of sale valid on its face cannot be collaterally attacked. Id., 469. Court cannot order sale of real estate to pay legacy. 4 C. 166. Order of sale only authorizes such instrument as is legally proper for conveyance of estate. 4 C. 512; 6 C. 269. Order to sell must be strictly followed. 6 C. 387. Not necessary to state in deed reasons why sale was ordered. 10 C. 87. Consideration may be less than sum named in the order. 22 C. 276. A new order not necessary where an invalid sale is made under a valid order. 27 C. 239. Order requiring notice to be published in county, but actually published in district, sufficient. 49 C. 428. Whether real estate should be sold is in sound discretion of court. 60 C. 67. Cited. 63 C. 352. Order of sale without notice of hearing invalid. 67 C. 8. Statute to be strictly followed. 68 C. 412. Effect of sale on rights of heirs; 84 C. 212; of devisees; 90 C. 143. Sale subject to dower. 72 C. 256. Failure to distribute surplus breach of bond herein required, not of administration bond. 77 C. 75; 82 C. 308. Administrator can defend against his agreement to sell land, on ground that court refused to order sale, though such refusal based on facts he laid before court. 80 C. 227. In case of fraud by administrator in sale, remedy on bond is cumulative. 81 C. 127. Power of court to order sale for purpose of distribution. 84 C. 212; 87 C. 85. Limitation of time within which order for sale may be effectual against heir in possession. 7 Wheat. 59; 90 C. 562. Sale of real estate before termination of life estate does not change nature of proceeds; they remain real estate under statute. 98 C. 333. Proceeds of sale of real estate cannot be charged with expenses, debts or legacies which would not have been chargeable against the real estate if not sold. 105 C. 238. Public notice of private sale not required since 1921 act. Id., 687. Cited. 109 C. 315; 121 C. 112.

Sale or mortgage by conservator: Conservator can sell real estate only under authority of court. 5 C. 286. Must sell for cash. 21 C. 290, 292. General statement of authority in deed held sufficient. 25 C. 1. Recitation in deed of authority to sell sufficient. 27 C. 529. Acceptance of return of sale held not conclusive. 33 C. 347. Cited. 67 C. 195. Who may recover for fraud by conservator in such sale. 81 C. 131. Conservator has no power to borrow money on credit of ward’s estate, except by order of court. 85 C. 279.

Sale or mortgage of trust estates: General reference in deed to authority sufficient. 27 C. 528. Proceeds of sale are covered by trustee’s bond. 77 C. 75. Where several are appointed trustees and only one qualifies, though will gives power to sell, order of court should be secured. 80 C. 673. Orders for sale where, in certain contingency, will gives trustee power, merely determine existence of contingency. 81 C. 171. Trustee cannot sell property to facilitate distribution, without order of court. 89 C. 283. Court may order sale under statute although period provided by will in which trustee could sell has elapsed; 105 C. 286; but otherwise if will contains an express prohibition against selling. Id., 278. Power to sell given in will does not include power to mortgage. Id., 286. Proceeds of mortgage may be used for improvement of real estate damaged by fire. 109 C. 199. Mere fact that sale of real estate is not necessary to pay debts does not make order of sale by Probate Court invalid. 135 C. 20. Cited. 140 C. 594; 143 C. 716.

Conservatrix may not bind ward’s estate in implied contract with real estate agent for sale of ward’s property without Probate Court approval. 155 C. 119. Empowers Probate Court to authorize sale of estate land but does not provide for counsel fees. 160 C. 415. Statute contemplates an open and fair sale in the best interest of the parties in interest and plaintiff who offered to purchase estate asset is entitled to due process in the court approving the sale. 180 C. 511. Cited. 186 C. 63; Id., 67; Id., 360; 208 C. 606; 209 C. 260.

Cited. 4 CA 436; 11 CA 297; 20 CA 58.

Conservator may sell property of ward only on authority of Probate Court. 7 CS 225. Conditions for denial of application to sell. 13 CS 14. Court may order sale or mortgage to satisfy debts and charges subject to the conditions of Sec. 45-271b. 17 CS 501. Cited. 40 CS 484.

Annotations to present section:

Subsec. (a):

Cited. 24 CA 582. Probate Court not required to hold public hearing to give potential bidders an opportunity to comment on bidding procedure. 66 CA 591.

Subsec. (b):

Limits application of a bond to the misappropriation related to a real estate transaction, and not all misappropriations related to the estate, where bond form was marked to indicate the restricted nature of the bond and there was no evidence that a global bond was intended. 269 C. 550.