TOP SELLING PROBATE REAL ESTATE AGENT IN LOS ANGELES COUNTY AND SOUTHERN CALIFORNIA
#1 PROBATE REAL ESTATE AGENT IN LOS ANGELES & SOUTHERN CALIFORNIA
Heather Paul, Realtor, Broker/Owner
CALL ME TODAY! (310)923-2334
Are you in need of a local Real Estate Expert to assist you with the sale of a family members home due to their recent death? Rest assured, we are here to help you! Firstly, if you are reading this, we would like to extend our most sincere condolences to you and your family on your recent loss. The probate process can seem very complicated and hiring a known, well versed Probate Real Estate Expert is the key to closing this chapter of your life quickly and in bringing in the highest price possible for the property.
Below is a wealth of information regarding the Probate Process, how long it generally takes, and much more. But please, don’t hesitate to call me with any questions you may have or if you would like to sell your home by probate.
How Long Does a Probate Real Estate Home Sale Take?
THE PROBATE PROCESS
Probate is a court-administered process of distributing a deceased person’s (or decedent’s) estate/assets according to their will if one exists or, if there is no will, to the person’s immediate spouse/children/siblings/relatives. This process generally takes approximately six to nine months to complete.
Probate is the only way to transfer real property from the deceased person to the heirs in the event that no trust was set up prior to the decedent’s death.
Q 1. Can you give me a general description of how a sale of real property in probate works?
A Estate administration providesfor the orderly distribution of real and personal property owned by a decedent. More specifically, any property which the decedent owned or in which the decedent had an interest at the time of death is collected into the estate and distributed to those entitled to it after all debts and expenses have been paid. The process of administering a decedent‘s estate is referred to as “probate,” and is generally supervised by the probate court.A personal representative is the person or entity charged with the responsibility of administering a decedent’s estate (Cal. Prob. Code § 58(a)). A personal representative is either:
- An executor (executrix) who is named in a will; or
- An administrator (administratrix) who is appointed by the court when there is no will, when the will does not name an executor or when the named executor is unable or unwilling to serve.
The personal representative is charged with the fiduciary responsibility of gathering the assets and paying the debts of the decedent insuch a way that the beneficiaries or heirs of the decedent receive the maximum inheritance. The personal representative usually will hire an estate attorney to handle the legal aspects of the probate. Most business dealings are through the estate attorney.
A Estate property may be sold by the personal representative when:
- The sale is necessary to pay debts, devises (gifts to persons named in the will), a family allowance, expenses of estate administration, or taxes;
- The sale is to the advantage of the estate and in the best interests of the interested persons;
- The property must be sold according to the terms of the will; or
- Authority is given in the will to sell the property.
(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.
Q 4. Are there any restrictions on the sales price of estate real property?
A 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 yearprior 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).
Q 5. What is a “Notice of Sale” and is it required prior to selling estate real property?
A A Notice ofSale 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).
A 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).
Q 27. When may offers be submitted on the sale of probate estate real property?
A Offers may be submitted at anytime. An offer received by the listing broker at any time before a sale closes must be presented to the personal representative, unless the personal representative has expressly instructed the broker not to present it, or unless the offer is patently frivolous. Whether the offer is patently frivolous depends on the facts and circumstances at the time of the offer. The licensee’s safest course of action is to submit all offers of this type to the personal representative for his/her own determination.
Q 29. Is there a minimum price for which estate real property must be sold?
A Generally, yes. Without full authority under IAEA, the minimum offer price for a private sale of real property must be at least 90 percent of the appraised value of the property (Cal. Prob. Code § 10309(a)(3)). The appraisal must have been made within one year prior to the date of the confirmation hearing (Cal. Prob. Code § 10309(a)(2)).
Q 30. Is there a minimum deposit required on the sale of estate real property?
A Generally, yes. Except under IAEA full authority, all terms of a sale including the minimum required deposit are subject to court approval and local rules of court which vary from county to county. Many courts require a 10 percent deposit at the confirmation hearing in the form of cash, cashier’s check, or a certified check.
Q 31. How soon must the accepted offer be returned to the court for confirmation?
A The personal representative is required to file a report of the sale and petition the court for confirmation of sale within 30 days after acceptance of the offer unless acting under IAEA full authority (Cal. Prob. Code § 10308). If the representative refuses or fails to do so within the 30 day period, the buyer may proceed to file the report and petition the court for confirmation of the sale. The buyer, of course, should consult a personal attorney if the buyer feels it is necessary to petition the court. (Cal. Prob. Code § 10308).
Q 32. Is an original bid subject to an overbid at the confirmation hearing?
A Yes unless the sale is under full authority of IAEA. Another prospective purchaser may attend the confirmation hearing and submit to the court a higher written offer, called an “overbid,” to purchase the real property (Cal. Prob. Code § 10311).
Q 33. Is there a minimum amount required for an overbid?
A Yes. The initial overbid must exceed the original bid according to the following formula:
- The amount of the original bid, plus
- At least 10 percent of the first $10,000.00 of the original bid; plus
- At least 5 percent of the amount of the original bid in excess of $10,000.00.
If the original bid returned to the court for confirmation is for $100,000.00, then the initial overbid must be for at least $105,500.00 (10 percent of the first $10,000.00 = $1,000.00; plus five percent of the remaining balance of that bid of $90,000 = $4,500.00; $1,000.00 + $4,500.00 = $5,500.00 which must be added to the original bid of $100,000. The resulting minimum overbid requires is $105,500. ($100,000 + $5,500).
The minimum amount of increase required after the first overbid will be set by the court at the time of the confirmation hearing. The court will accept bids in much the same manner as an auction until the highest bid available has been made at the confirmation hearing.
If one prospective buyer bids a lesser cash amount and another prospective buyer bids a higher credit amount, the court cannot consider the higher offer unless the personal representative informs the court in person (or by counsel prior to confirmation of the sale) that the higher offer is acceptable (Cal. Prob. Code § 10311(d)).
CALL HEATHER PAUL TODAY! (310)923-2334
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Probate and Trust Real Estate Glossary
Here are brief definitions of terms you may encounter if you are dealing with probate or trust real estate or inheritance property:
Beneficiary: A person who inherits when there is a Will.
Conservator: A person who has the court-appointed fiduciary responsibility for the care of another adult.
Conservatee: The person whose care is provided for under a conservatorship.
Custodian of the Will: The person in possession of the Will when the person who wrote the Will dies.
Decedent: The person who died.
Executor: A person named in a Will and appointed by the Court to carry out the decedent’s wishes. This person is usually named as the seller of the real property.
Heir: A person who inherits.
Intestate: When someone dies without leaving a Will. When there is no Will, the sale of the decedent’s real property often requires court confirmation.
Intestate Succession: The order of who inherits the property when the decedent does not have a Will.
Legatees, or Devisees: People who are named in a Will.
Personal Representative (Administrator or Executor): The person responsible for overseeing the distribution of the estate.
Probate: The process of deciding where, how and to whom to distribute the decedent’s estate, such as the real property.
Probate Real Estate Sale: The transfer of legal title (ownership) of real property from the estate of the person who has died to his or her beneficiaries or to a buyer under the supervision of the Court.
Probate Referee: Before real property can be sold through probate, it must be appraised. This is done by a Probate Referee. In California, probate referees are appointed by the State Controller and assigned to a particular case by the court clerk. They are paid for this service directly by the estate, usually a percentage of the appraised value.
Real Property: The term used to refer to real estate (land and buildings) in probate and trust sales.
Testate: When someone dies leaving a Will.
Trust: When a person (Trustee) holds property at another person’s (Settlor’s) requests for the benefit of someone else (Beneficiary).
Will: A legal document that lists a person’s wishes about what will happen to his/her personal and real property after death.