Is the Sale of Probate Real Estate different from Traditional Sales?
The short answer is absolutely YES! The next question then is "How is the Sale of Probate Real Estate different from the sale of Traditional Real Estate?"
In California, unless there is a trust in place, when someone dies that owns real property the estate is subject to certain legal requirements and regulations that we know as Probate.
Of course, I am not an attorney nor am I providing you with legal advice - for that consult with your own attorney for details regarding your specific circumstances, or do you own due diligence and read the California Probate Code for starters. The information I am providing here is not only NOT legal advice nor is it guaranteed accurate or complete. Remember every set of circumstances is different.
So first, let’s define PROBATE. Probate is a legal proceeding that's used to wind up a deceased persons legal and financial affairs, after they have died. Probate is regulated by the State of California, but is always conducted in the county where the decedent lived. The process takes at least 8 months from the first filing and may take several years, depending on how complicated it is or if it's being contested.
There are both advantages and disadvantages to Probate. If there is any sort of dispute between the heirs, the good news is that the entire process is controlled by a judge who will make decisions either between the heirs or the heirs and the executor. Creditors must submit their claims (assuming they are properly notified) within a four month window. The executor of the estate, in most cases, must prepare a full accounting of the estate and provide it to the court along with their activities, on behalf of the estate.
There are of course disadvantages of having to Probate an estate, as well. Typically, the cost is going to be much higher than it would have been to administer an estate valued at the same amount. A probate will typically take longer to resolve than a trust. Unless there is some sort of dispute, most estates do not require the supervision of a judge to wind things down.
LETTERS (OF PROBATE): The Executor (Administrator if there was no will) receives authority to sell the home once the court awards The Letters of Probate (DE-150). These powers are granted through the Independent Administration of Estates Act (IAEA). Unless there are objections to the sale, most real estate sold under this act, when the Executor has full authority, go very smoothly and do not require a court confirmation hearing.
Not every Executor/Administrator has 'Full Authority' and may only have limited powers through IAEA. This is when a confirmation hearing will be required. Executors/Administrators with Full Authority may elect to have the sale confirmed in court.
COURT CONFIRMATION: The following steps, generally, are followed in the sale of most Probate Real Estate that is subject to Court Confirmation:
- The buyer submits an offer to the estate and 'conditionally' accepts the offer. The offer is 'accepted' by the Executor/Administrator. Unlike other real estate transactions, the estate IS NOT bound by the accepted offer.
- Once ALL BUYER CONTINGENCIES ARE REMOVED FROM THE ACCEPTED OFFER, a petition for the court hearing is made. The time frame will vary by court and the current workload of each court. You can expect it to be from 20 to 45 court dates out.
- The buyer MUST have a 10% deposit prior to (or on the date of). These must be certified funds.
- Notice is given to the public through publication as a Legal Notice, for a statutory period, that includes the accepted price.
- The court room may become an open auction as the real estate is subject to competitive bidding. The process is known as 'overbidding'. The first overbid must be equal to or greater than the open bid PLUS $500 PLUS 10% of the original bid. Additional overbid increments will be determined by the judge.
Referee Appraised Value: $300,000
Acceptable Offer: $270,000
Any overbid in court is unconditional. There are no contingencies and the bidder must be prepared with a confirmed deposit of at least 10% of the accepted overbid, at the time of the overbid.
Original Offer: $275,000
First $500 $ 500
10% Min $ 27,500
Minimum Overbid $303,000
Deposit Required: $ 30,300
- Should a buyer default after a court confirmed sale, the buyer may lose their deposit.
- If the sale goes to an over-bidder, than the original buyers deposit shall be refunded. If the sale is confirmed, the deposit is applied to the purchase price.
- The confirmed purchase price MUST be for no less than 90% of the probate referee's appraised (or re-appraised) value of the real estate.
- Real Estate commissions are always subject to approval of the court.
When you find yourself in the unfortunate situation where you have to sell real estate as part of a probate estate, do yourself a favor and find an agent who understands the process...there is more to it than most agents know.