Can I List and Sell A Property if it's in Probate?
In order to answer this question, we have to start with the basic definition of Probate. Probate is generally defined as "distribution of a decedent's estate". When the estate includes real property, the question often arises about the ability of the estate's administrator to sell the property before the Probate is finalized.
This can either be accomplished with full court oversight or independent of the court's approval. Probate sales need not be difficult or complicated. Once an agent understands the process and the options available to the administrator (often one of the decedents children), they can help them make an informed decision about their ability to sell the property. The title requirements for a sale out of probate are listed below. If you have questions about this or if your family is dealing with a probate situation, email or call me directly with specific questions.
So the short answer is, "YES". Real property that is in probate can be sold at a public sale in which the property is sold at public auction through the probate court, which oversees the entire process.
The property can also be sold through the "Independent Administration of Estates Act". This allows the executor of the decedent's estate to sell the property without court approval. The executor or their attorney petition the court to sell the property independently of the probate proceeding. This is essentially a private sale much like any other traditional real estate sale in which the administrator of the estate negotiates a transaction with a buyer, ideally with the guidance and assistance of a licensed Realtor.
For title insurance purposes, the following will be needed to verify that the attorney for the executor followed the guidelines set forth in the Act.
1. Certified copy of "Letters Testament" or "Letters of Administration" granting the personal representative full authority to proceed under the Independent Administration of Estates Act.
2. A copy of the "Notice of Proposed Action" which is given to all potential heirs advising them of the intent to sell the property, and either consent to the proposed action (sale), waiver of the Notice, or an affidavit from the attorney for the executor stating that the Notices were properly given and no objections were received within 30 days.
3. If any objections were received, the order from the court authorizing the executor to proceed.
The Independent Administration of Estates Act is a very common practice and is generally much simpler and expeditious than obtaining full court approval of the sale and having the property go through public auction. In most cases this process can be accomplished within the normal escrow period.
For questions specific to your Probate sale, feel free to contact me at 714.330.9558 or via email. You can also visit me on the webto search for Probate sales in Orange County, Los Angeles County, and throughout Southern California.