What Is a Probate Sale?


When an individual dies, the person likely leaves property behind. Frequently, a last will and testament is also left behind, which indicates how the decedent wanted any property or assets distributed. Consequently, the last will and testament may be subject to "probate."

Probate is the process by which the court oversees the administration of the decedent's last will and testament. The probate process is usually necessary, unless there are no assets in the estate or if the value of the estate is less than a certain amount of money.

Each jurisdiction has different thresholds as to the amount of the estate which is not subject to probate, so it is important to check with the
laws of your region. In any event, when the will is subject to probate, there may be property which must be disposed of pursuant to a sale. This sale is also known as a probate sale. Sometimes a probate sale is necessary in order for the estate to get money to pay off debts of the decedent, while in other instances, the sale may be done simply to liquidate the assets of the estate.

HOW IS A PROBATE (“ESTATE”) SALE DIFFERENT?

IN CALIFORNIA, when real estate of a deceased person goes into probate, the sale of that real estate becomes subject to certain legal requirements and regulations.

In the majority of cases in our area today, the estate representative (an executor or administrator of the estate) has the authority to sell the property through powers granted by the Independent Administration of Estates Act (IAEA). When the estate representative has full powers under this act, he/she may elect to sell the property without the need for a court confirmation hearing. Unless there are objections by interested parties to the estate, which could require the sale to be confirmed in a hearing, the sale can usually be completed with a minimum of additional requirements. Most estate sales sold under the IAEA are completed very smoothly and differ very little from most other sales.

In some cases, the estate representative sale of property in probate may be granted only limited powers through IAEA, in which case a confirmation hearing is required. Even if the estate representative has full powers, he/she may elect to have the sale confirmed in court.

When court confirmation is either chosen or required, certain procedures are generally followed, as required by law and/or custom:

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An offer is presented and conditionally “accepted” by the estate representative. This purchase agreement is not binding on the estate.

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After all buyer contingencies are removed from the accepted offer, a petition for the court hearing is made. The date of the court hearing depends upon the court calendar at the time, but is generally 20-40 days from the date of the petition.

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The buyer needs to deposit 10% of the purchase price prior to or on the date of the court confirmation hearing.

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The sale, together with the accepted offering price, is advertised for a statutory period in a local newspaper.

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There is open, competitive bidding at the court hearing. The minimum first overbid price shall be an amount equal to the accepted purchase price of the accepted offer, plus five percent of that amount, plus $500. In the event of such an overbid, the court shall determine any further incremental overbidding amounts - for example, $1,000 or $2,000. The bidding stops with the final bid.

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Any person who bids in court must make an unconditional offer (i.e., obtaining financing and approving inspections should not be a condition of the offer) and if confirmed must present a cashier’s check deposit for 10% of the purchase price as described above, or as determined by the court.

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In the event a buyer defaults after a court confirmed sale, the buyer may lose his/her deposit.

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If the court confirms the sale to an overbidder rather than the original buyer, the original buyer’s deposit shall be refunded. If the sale is confirmed to the original buyer, the deposit shall apply to the purchase price.

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The purchase price accepted must be at least 90% of the probate referee’s appraised or re-appraised value of the property.

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Real estate commissions are subject to approval of the court.

The preceding is a general discussion of certain probate sale procedures in California. This information is not intended as legal advice, or guaranteed accurate or complete. Specific situations may differ.  Contact your attorney for information regarding any particular situation.

 

Probate Timeline

Step

 

Timeframe

Prepare and File Petition for Probate

 

1-2 months

Court hearing on the Petition for Probate

 

2-3 months

The following are issued: Letters of Administration, Orders for Probate, Duties and Liabilities, Issue Bond (if ordered), & Letters of Testimentary

 

2-4 months
(if not contested)

Notice to Creditors

 

2-4 months

Notice to Department of Health Services Inventory & Appraisement

 

4-8 months

Pay State and Federal Taxes (if necessary)

 

6-12 months

Allow or Reject Creditor Claims

   

Possible Preliminary Distributions

   

Notice to Department of Health Services (if deceased received medical)

   

Notice to Franchise Tax Board (if heir is out of state)

   

Claim of Exemption (if assets transfer to a minor)

 

6-15 months

Receive Final Tax Letter from State and Federal (if appropriate)

 

6-18 months

File Petition for Final Distribution and Accounting

 

8-16 months

Hearing on Petition for final Distribution and Accounting

   

Order Approving Final Distribution and Accounting

   

Distribution of Assets to Heirs

 

9-17 months

Final Discharge Order (indicates close of probate case)

 

9-18 months

Final Distribution of Funds

 

9-18 months

 

Probate Glossary

Administrator: A person or entity appointed by the court to administer the estate when no will exists

Administrator with Will Annexed: An Administrator appointed by the court to act on behalf of the estate of a deceased person who left a will, but where no named Executor is either willing or able to act in that capacity

Affidavit: A written statement made under penalty of perjury and requiring notarization

Ancillary Administration: Administration of a decedent’s property located in a state other than the decedent’s permanent residence

Beneficiary: A person who inherits when a will exists

Codicil: An addition to a will that may modify, add to, subtract from, revoke or qualify provisions found in the will. It is signed with the same formality as the will

Conservator: A person the court has appointed to have the fiduciary responsibility for an adult

Conservatee: A person whose care and best interest are provided for under a conservatorship

Conservatorship: A court action in which a judge appoints a responsible person (the Conservator) to take care of another who cannot handle their finances (Conservatee)

Decedent: The person who has died

Declaration: A written statement made under penalty of perjury

Devisee: A person who receives a gift of real property by a will

Estate Taxes: The taxes imposed by the federal government on the transfer of assets upon death

Ex Parte: By, or for, one side only. A situation in which only one party (without the adversary present) appears before a judge

Executor: The person, or company, named in the will to execute the will

Fiduciary: A person charged with a high degree of care who acts on behalf of another. Executors and trustees are fiduciaries

Guardian: The individual, or corporation, who has legal charge of the care and management of the person and/or property of a minor

Heir: A person entitled to inherit another’s property

Inheritance Tax: The taxes imposed on an heir based on their relationship to the decedent

Inheritance Tax Referee: A person that evaluates the assets of the deceased or estate (probate inventory)

Intestate: The terminology used when a person dies without leaving a will

Intestate Succession: The order of who inherits the decedent’s property when
that decedent died intestate (leaving no will)

Irrevocable Trust: A trust whose terms and provisions may not be changed or revoked

Letters of Administration: An order received from the Probate Court that gives the Administrator of an estate the legal authority to locate, manage, spend, distribute and sell the assets of an estate.

Letters Testamentary: An order received from the Probate Court that gives the Executor of an estate the legal authority to locate, manage, spend, distribute and sell the assets of an estate.

Life Estate: An interest in property, the term of which is measured by the life of its owner

Notice of Proposed Action: A Notice of Proposed Action is used when action is taken without court supervision. A Notice of Proposed Action must contain a description of the proposed action in reasonably specific terms, and when dealing with real estate must include sales price and commission payable

Order for Probate : Court appointment or confirmation of the personal representative (Executor, Administrator, etc.)

Personal Representative: The Executor or Administrator

Pretermitted Heir: One who would normally be a beneficiary of the decedent but who is not mentioned in the will

Probate: When used as a noun Probate refers to the assets of the decedent. When used as a verb it means deciding how to distribute the decedent’s assets (real property)

Probate Administrator: Entity, or person, designated by the State to act when the decedents died intestate and without living relatives

Real Estate (also Real Property): An interest in land or property affixed to the land

Residue: The remaining part of a decedent’s estate after the payments of debts and legacies. Also referred to as the “residuary estate”

Residuary Beneficiary: One who receives all or part of the residue when distributed

Revocable Trust: A trust whose terms and provisions can be changed, modified, amended, or revoked

Testate: Designation when a decedent dies leaving a will

Testator: The person (testatrix can be used as the female term) who signs the will that disposes of his/her property

Trotten Trust: A form of revocable trust, usually a bank account that allows for the distribution to the beneficiary upon the death of the trustee without the need for probate of the asset

Trust: A legal title to property held by one party (Trustee) for the benefit of another party (Beneficiary)

Trustor: The person, or persons, who establish a trust

Vacating Sale: The action taken when the buyer does not complete the transaction in a court confirmed sale

Will: The document left by the decedent outlining their wishes for the disbursement of their personal and real property