Selling Real Property Through Probate in California
Grieving for a loved one is tough. And having to deal with the task of selling their property tends to add even more stress.
Especially if you have to go through probate. In probate, you won’t survive selling a home without a lot of help from an experienced probate attorney, in addition to a real estate agent who’s an expert in your local probate rules and procedures.
Whether you were named as the executor in the will or the court appointed you as such, you’ll need to partner up with a dream team to get this house sold.
What is a Probate?
A Probate is the court supervised process of administering a decedent’s estate if they passed away without a valid Trust. The probate is administered by the estate representative. The Estate Representative may be the person named in the Will or someone appointed by the Court.
The Estate representative has a fiduciary duty and responsibility to gather assets and pay the debts of the decedent to ensure the heirs and beneficiaries receive their maximum inheritance.
In many cases, real property must be sold in order to pay debts, taxes, and expenses to administer the Estate.
When a personal representative of an estate gets appointed to manage the decedent’s estate, they become an officer of the court with many duties and obligations.
When can Real Property be sold in Probate?
The Personal Representative must have the authority to act in order to sell. If there is no Will naming an Administrator then this authority is granted by the Court when Letters Testamentary or Letters of Administration are issued.
Letters will name the Personal Representative and if they have full or limited authority.
The Executor or Administrator is the “seller” and therefore is the one who hires the Real Estate Agent. An advisable way the Representative sells a probate home is by hiring a Probate Real Estate Specialist.
The court requires that home selling through California Probate be confirmed by the Court unless the Executor or Administrator has full Authority to Act. If the Court requires confirmation then the Representative or their Probate Attorney must petition the Court.
Your petition to the court will state the details of the Pending Purchase.
What is required of a Real Property sale through Probate?
The probate process functions like a non-probate real property selling, with some exceptions.
1. Probate sales require different disclosures be completed than non-probate sales, these special disclosure documents govern probate sales;
2. Executors/Administrators are exempt from certain disclosures that are required for non-probate sales – this exemption does not relieve the personal representative from disclosing all known material facts regarding the desirability and value of the property;
3. Probate Properties are sold “as-is”, repairs or improvements are not required – however, you should maintain the property while the real property is listed for sale, i.e. yard maintenance;
4. If the Personal Representative has full authority to act under IAEA a Notice of “proposed action” is required once an offer has been accepted. The notice of proposed action is required to be given to the beneficiaries of the Estate.
The beneficiaries have 15 days to approve or reject the sale. IF the Estate Representative does not have full authority to act under IAEA, then a Notice of Sale gets published before the sale. The Notice of sale gets published in the newspaper and provides information regarding the sale;
5. The sale of the Real Property must not be less than 90% of the appraised value;
6. The Personal Representative can enter into an “exclusive right to sell” listing agreement for a period not in excess of 90 days, you may execute an extension of the contract, each extension not to exceed 90 days.
If you are selling real property through a Probate, your real estate agent should be experienced in probate and trust sales and be able to explain the language, the documentation and the steps in the process. Clear communications are vital.
Hiring an experienced real estate agent that understands the California Probate Process to sell the real property is prudent.
The probate real estate agent’s experience, knowledge, and extensive training ensure homes sold through probate are managed following the probate process.
