Probate Sales Information
Welcome to the Probate Sales Information section. The infornation here is to assist you with basic information in understanding the process that pertains to real property sales only and should not be a substitute for legal advice.
Your attorney can advise you on selling the real property under an Administrator for an estate that has a Will versus Not having a WILL and Court Confirmation versus Non-Court Confirmation.
Your attorney can advise you on selling the real property under an Administrator for an estate that has a Will versus Not having a WILL and Court Confirmation versus Non-Court Confirmation.
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Questions
1. When may the Personal Representative Sell the estate property? 2. Do you need to put the house up for sale with a real estate Broker ? 3. Are there any restrictions on the sales price? 4. What is Court Confirmation of a Sale ? (Sections 3 & 4 give information pertaining to a Private Sale versus a Sale needing Confirmation) 5. What is a "Notice Of Sale" and is it required prior to selling the property ? |
Answers
1. Estate property may be sold by the personal representative when:
(Cal. Prob. Code § 10000.) A decedent's will may designate the manner in which estate real property is to be sold or identify the particular property to be sold. Absent a court order based upon the best interests of the interested parties to the contrary, the personal representative shall comply with the decedent's instructions. If the will is silent on these matters or there is no will, the personal representative may select the method of sale and the particular property to be sold.Estate real property may be sold by private sale, public auction, or a different method specified in the will of the decedent (Cal. Prob. Code §§ 10000.3, 10303). A private sale is one in which bids or offers are independently solicited, while a sale by public auction invites concurrent competitive bidding. 2. The personal representative may legally market and sell real property without the services of abroker, 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 (Independent Administration of Estates Act), a sale is generally subject to confirmation by the court. 3. Yes. The sales price of a private sale of estate real property subject to court confirmation must be at least 90 percent of its appraised value set within one year prior to the sale (Cal. Prob. Code § 10309). All terms of a sale, including the minimum required deposit, are generally subject to court approval and local rules of court which vary from county to county. Many courts require a 10 percent deposit atthe confirmation hearing in the form of cash or a certified check. Generally, offers with contingencies of any sort (e.g., financing, sale of home) are not approved by the court. Sales of real property sold under the IAEA do not have the samerestrictions and may contain all of the same contingencies and provisions as non-probate sales of real property (Cal. Prob. Code § 10503). 4. 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 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. Titlewill 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). 5. 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 respresentative to sell the real property. 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 under the IAEA (Cal. Prob. Code § 10503—the property may be sold with or without notice). |
The information contained herein is believed accurate per the California Association of Realtors. It is intended to provide general answers to general questions and is not intended as a substitute for individual legal advice. Advice in specific situations may differ depending upon a wide variety of factors. Therefore, readers with specific legal questions should seek the advice of a qualified Trust & Estate attorney.
Copyright© 2005 CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.). Permission is granted to C.A.R. members only to reprint and use this material for non-commercial purposes provided credit is given to the C.A.R. Legal Department.
Copyright© 2005 CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.). Permission is granted to C.A.R. members only to reprint and use this material for non-commercial purposes provided credit is given to the C.A.R. Legal Department.