Probate is a Superior Court procedure to determine a will’s validity and any creditor’s claims. Probate also establishes the identity of the beneficiaries. If the validity of a will is in question, then after a person dies, an administrator or administratrix is appointed by the court. The administrator or administratrix is appointed by the court to take possession of the property until probate is finalized. If the will has appointed a particular custodian, then that person is known as the executor or executrix.
An executor is a person nominated in the will who is responsible for managing of the probate estate. Such management duties include preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained.
If there is no will then state law provides that the decedent’s closest relatives have the highest priority in becoming administrator of the estate.
Testate means that the decedent died with a will. Intestate means that the decedent died without a will.
Because probate files are public information, you can go the Superior Court of the county the probate is filed in and request to access the file.
With the right probate beneficiary designations, there is no need to go through probate. Holding property in joint tenancy or a living trust can avoid probate. Up to $100,000 of personal property can pass in California without probate and there are provisions without limit for vehicles, vessels, and mobile homes. There is also a summary petition procedure for transferring any type of property to a surviving spouse without any value limit.
Seeking out professionals with adequate knowledge of probate and real estate is crucial. It is important to work with professionals who understand what you are going through both emotionally and what your business needs are.
Assuming that you have already filed the petition for probate, the Superior Court will issue the type of authority granted to the executor. “Limited authority” means the executor must have court supervision for selling real estate of the estate and other acts. “Full Authority” means the executor is allowed to sell the estate property without going through court confirmation.
The next thing is to make sure you are issued Letters Testamentary. Letters Testamentary are necessary because these are the documents that allow the title company to accept the signature of the executor to transfer title to the new buyer. Your real estate professional should be well versed in court procedures so that they understand the flow and that they also understand the current real estate market.
If they owned property in other states, the estate could require multiple probates in each one of those states.
This section of the probate code grants the executor the authority to make decisions regarding the estate without the need to ask for court permission. This means that if the executor is granted authority under I.A.E.A, they may sell the property without court supervision.
Once an executor or administrator is appointed, you will need to wait for the Court to determine whether the estate will be administered under the court confirmation system or under the Independent Administration of Estate Act (I.A.E.A.). If the court orders that the estate may be administered under the I.A.E.A. then the executor may sell any property without court approval.
Certain procedures are generally followed when court confirmation is either chosen or required. An offer is presented and conditionally “accepted” by the estate representative. This purchase agreement is not binding on the estate. After all buyer contingencies are removed from the accepted offer, a petition for the court hearing is made. A 10% deposit 10% of the purchase price prior to or on the date of the court confirmation hearing is required from the buyer. The sale along with the accepted offering price is advertised for a statutory period in a local newspaper. Open, competitive bidding then occurs 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. If there is an overbid, the court will determine any overbidding amounts. The purchase price accepted must be at least 90% of the probate referee’s appraised or re-appraised value of the property. All real estate commissions become subject to the approval of the court.
An overbid could occur when court confirmation is required, and an interested party comes to court and bids higher on a property than the original offer.
The real estate commission for a property that is in probate is set by a court order if the estate falls under the old court confirmation process. However, most probates fall under the Independent Administration of Estates Act (I.A .E.A), which means that the listing is taken, or a sale is made under this law, commissions are determined by the agreement between the executor and the Realtor.
First of all, you should know that probate real estate is a specialized area of real estate. Not every real estate agent or Realtor is familiar with probate, its legal procedures, and its contracts. Next, you will want to work with someone who is knowledgeable in this specific area of expertise. It’s just like going to your doctor for a specific problem. Do you want to see a general practitioner, or would you rather see the specialist? When dealing with Probate Real Estate you are better off with a specialist. 1st Priority One Real Estate has been certified as a California Probate Specialist Brokerage.
Many people find themselves with a house after the death of a family member. While this works out for some people, many are not prepared for the arduous task of taking on someone else’s home. The decision of whether to keep or sell the home could be laden with fear, obligation, and extreme emotion. The best way to make a decision on what to do with the home you just inherited is to try to take the emotion out of the decision. Apply a business sense to the decision. Ask yourself a few questions such as:
Once you have tackled a few of these questions from a basic business standpoint, you will have a clearer picture on what you should do with the home you just inherited. Should you decide that it is best to sell the home that you’ve inherited, it is wise to seek the professional advice of a local licensed real estate agent.
If you have questions about a personal or family trust, please consult your attorney. These pages do not offer legal advice or attempt to define the many types of trust but provide general information for trustees and their representatives who might be facing the sale of real property. We also offer some resources for individuals purchasing property offered through a trust sale.