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Serving
Massachusetts Agencies

Power of Sale in Will: Duration

Probate

Technically, a power of sale contained in a will is unlimited in time.[1] However, there are circumstances where the power can be considered "stale" or exhausted. For example, if a final account has been filed and allowed in the estate of the decedent it is generally agreed among conveyancers that the power of sale has thereby terminated as it is evident that its purposes have been fulfilled. In this regard, it is said in Crocker's Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §923:

It has ordinarily been assumed that, in the absence of special provisions, and executor's power to sell is for the payment of debts, expenses of administration or taxes and that the power continues until such have been paid. [Citations omitted.] The above cases show the desirability of obtaining a release of power in appropriate cases, where, for instance, no final account shows payment of such matters.

Moreover, some commentators have suggested that the power is limited to, and can be exercised only in connection with, the payment of debts, expenses of administration, death taxes or distribution regarding the estate, and can not be utilized merely to strip devisees of their title. See Park, Massachusetts Practice, Real Estate Law, with Forms, West Publishing Co. (Second Edition, 1981), §748 and Crocker, Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §923. On this principal it could be stated that even in an estate where no final account has been allowed the power would lapse if a significant period of time—the period during which such debts, expenses of administration, death taxes must be paid—has expired.

It has been held, however, that a power of sale might last as long as twelve[2] or fifteen[3] or even twenty-six[4] years, but in each case there were specific reasons for these decisions—primarily the fact that the testator's will required such a conclusion. 

1 For this reason alone, it generally agreed among conveyancers that even if a deed is accepted from the devisee that the executor should join in the conveyance if for no reason other than exhausting the power. See Swaim, Crocker's Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §A30.

2 Mayo v. Merritt, 107 Mass. 505.

3 Bayley v. Sloper, 263 Mass. 534, 160 N.E. 275.

4 Johnson v. Tracey, 326 Mass. 628, 88 N.E.2d 157.