(a) If the Court of Probate finds that the estate of a deceased person is insolvent and if the real property has been specifically devised or if the court finds that the estate of such person is solvent but that there are no assets of the estate, other than real property specifically devised or forbidden by will to be sold or mortgaged, from which debts, taxes and administration charges against the estate may be paid, the court shall order personal notice of the pendency of the application for a decree authorizing the sale or mortgage of such real property to be given to all devisees of such real property whose existence, names and residences can be ascertained by the court and shall order such other notice as it deems advisable to be given to all such devisees whose existence, names and residences cannot be ascertained by the court.
(b) Except as provided in this section, real property of a decedent whose estate is solvent and either specifically devised by will or forbidden by will to be sold or to be mortgaged shall not be so ordered to be sold or mortgaged without the written consent of the specific devisees or other parties interested as distributees of such real property or of the guardians ad litem or guardians or conservators of the estates of those not legally competent so to consent.
(1949 Rev., S. 7023; 1953, S. 2938d; P.A. 80-476, S. 315.)
History: P.A. 80-476 divided section into Subsecs., substituted “real property” for “real estate” and made minor changes in wording; Sec. 45-239 transferred to Sec. 45-271d in 1981; Sec. 45-271d transferred to Sec. 45a-428 in 1991.
Annotation to former section 45-239:
Where widow had life use of husband's estate consisting only of real estate, Probate Court could authorize executor to mortgage estate without her consent, even though estate was probated as a solvent estate. 17 CS 500.
Annotations to present section:
Subsec. (a):
Where estate had insufficient assets other than specifically devised real property, and although title to the property passed to decedent's devisees at her death, such title was not absolute and Probate Court possessed authority to order sale of the subject property. 79 CA 309. Where court determined it was necessary for executor of estate to have possession and control of real property so as to market it for sale in compliance with order of Probate Court, any interest or title in such property that would have otherwise passed under decedent's will was terminated upon the issuance of Probate Court's order to market property for sale and in fact never came into being, and legal title to such property belonged to estate. 118 CA 577.
Notes of Decisions
Cited in
7
cases, 2001–2016 · leading case:
Zanoni v. Lynch, 830 A.2d 304 (Conn. App. Ct. 2003).
Zanoni v. Lynch, 830 A.2d 304 (Conn. App. Ct. 2003).
· cites it 31× “” The Probate Court further concluded that it had the authority, under General Statutes § 45a-428 (a), to authorize the *312 sale of the property, which Benny specifically had devised, to pay the debts and expenses of the estate.”
Bender v. Bender, 975 A.2d 636 (Conn. 2009).
· cites it 5× “10 General Statutes § 45a-428 11 granted lim *712 ited authority to the probate courts to order the sale of real property that has been specifically devised or is forbidden to be sold under the terms of a will, allowing such a sale only when it is essential to settle claims…”
Zanoni v. Lynch, 830 A.2d 314 (Conn. App. Ct. 2003).
· cites it 9× “On December 8,1993, the Probate Court issued a decree determining that it possessed authority, under General Statutes § 45a-428 (a), to authorize the sale of the properties that Benny had specifically devised to Rosalie Zanoni to pay the debts and expenses of the estate.”
Scott v. Heinonen, 985 A.2d 358 (Conn. App. Ct. 2009).
· cites it 3× “After a careful review of the language of the relevant statutes in conjunction with our case law, we do not find any support for the defendant’s contention that, following an order by the Probate Court authorizing an executor to market a decedent’s real property so as to satisfy…”
Yale-New Haven Hosp., Inc. v. Jacobs, 779 A.2d 222 (Conn. App. Ct. 2001).
· cites it 2× “Consequently, General Statutes § 45a-428, which requires that the devisees of real property receive personal notice of the pendency of an application for a decree authorizing the sale or mortgage of the property, does not apply to the present case.”
Southport Congregational Church−United Church of Christ v. Hadley, 98 A.3d 99 (Conn. App. Ct. 2014).
· cites it 12× “’’ 2 General Statutes § 45a-428 (b) provides: ‘‘Except as provided in this section, real property of a decedent whose estate is solvent and either specifically devised by will or forbidden by will to be sold or to be mortgaged shall not be so ordered to be sold or mortgaged…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.