I'm a (CPRES) Certified Probate Real Estate Specialist. This includes taking classes and passing a test on Probate Real Estate Laws. I have sold Probate Real Estate. I have also acted as a Personal Representative and know what a tough time this is. I will be there with you to make this process easy. I can work with your Attorney to ensure a smooth transaction. I know what documents the county and escrow need to close on time. If you have any questions about probate or selling your home please give me a call.
Frequently Asked Questions
1. Must the personal representative list the estate real property with a real estate broker?
The personal representative may legally market and sell real property without the services of a broker, as if he/she were the owner of the property. The personal representative is considered the “seller” in the transaction. However, the personal representative may list the property with a real estate broker. The process of listing, marketing and selling probate real property is much the same as any sales transaction with some exceptions discussed below. Unless the personal representative has full authority under the IAEA, a sale is subject to confirmation by the court.
2. What is a "Notice of Sale" and is it required prior to selling estate real property?
A Notice of Sale must be published prior to the sale of estate real property unless the will directs the real property to be sold or gives authority to the personal representative to sell the real property or the personal representative has full authority under the IAEA. The Notice of Sale provides the public with required information concerning the sale and will typically be handled by the attorney for the estate. The contents of the Notice of Sale can be found in Probate Code Section 10304.
A Notice of Sale of real property must be published at least three times over a period of not less than 10 days before the sale, with the third publication at least five days after the first (Cal. Prob. Code § 10300; Cal. Gov’t Code § 6063a). All publications must be in a newspaper published at least weekly in the county in which all or some of the property is situated.
Certain sales are exempt from this requirement, most importantly, sales by a personal representative with full authority under the IAEA (Cal. Prob. Code § 10503—the property may be sold with or without notice).
3. What is meant by court confirmation of the sale of real property?
The personal representative is required to report the sale and petition the court for confirmation of the sale within 30 days of accepting an offer (Cal. Prob. Code § 10308). Should the personal representative fail to perform these acts in this time period, the purchaser may do so on his or her own behalf (Cal. Prob. Code § 10308(b)). All estate real property sales must be confirmed by the court except for sales of property by a personal representative with full authority under the IAEA.
At the confirmation hearing, the original sale may be subject to being overbid by another purchaser (Cal. Prob. Code § 10313). The court will confirm the sale to either the original bidder or to an overbidder and normally approve payment of the brokerage commissions. Title will pass to the successful buyer only after the terms of sale have been met, the court has confirmed the sale and the personal representative has executed a conveyance to that buyer (Cal. Prob. Code § 10314).
4. May the personal representative enter into a contract with a licensed real estate broker to sell estate real property?
Yes. The personal representative may enter in to an exclusive right to sell contract with a broker for an original period of not more than 90 days plus one or more extensions each limited to the same periods (Cal. Prob. Code § 10150(c)). This real estate broker may cooperate with other brokers and may advertise the property on the MLS (Cal. Prob. Code § 10150(a)). Prior court approval must be obtained for each extension unless the personal representative is acting under IAEA. However, even here, if the personal representative has obtained only "limited" power rather than "full" power to administer the estate, court supervision of the sale of real property is required (Cal. Prob. Code § 10501(b)).
5. Who has the power to accept an offer concerning estate real property?
The personal representative of the estate has the power to accept an offer. However, any acceptance is subject to court confirmation, unless the sale is made under the Independent Administration of Estates Act by a personal representation having full authority to administer the sale.
6. Are the price and terms prescribed by law when estate real property is being sold under the IAEA?
No. Under full authority to administer decedent‘s estate, a sale of estate real property may be made at the price and on the terms determined by the personal representative. The sale is not subject to court supervision or the overbid process. The law requiring the price of estate real property to be at least 90 percent of the appraised value does not apply to sales under the IAEA. However, the personal representative still has a fiduciary duty to the beneficiaries/heirs of the decedent to maximize the estate‘s assets. Additionally, the sale can be for cash or on credit. (Cal. Prob. Code § 10503.)
7. Is the personal representative required to inform anyone of a possible sale of estate real property when it is being sold under the IAEA?
Yes, the personal representative must give a "Notice of Proposed Action" when selling estate real property without court supervision (Cal. Prob. Code §§ 10510, 10511). The personal representative must inform the following persons and entities with an interest which may be affected by the proposed sale, unless they have waived in writing such notice or have provided written consent to the sale:
- Each person named in a will;
- Each known heir entitled by law to property of a decedent dying without a will;
- Other interested persons requesting notice, such as creditors or beneficiaries of a trust; and
- The Attorney General, if any portion of the property is to go to the State.
(Cal. Prob. Code § 10581.)