Probate Basics

1. Appointment of an Administrator or Executor
   • A Will nominates a person to serve as Executor. This needs to be confirmed by the court.
   • In the case there is no Will, an Administrator is appointed by the court.
2.  Property Sale
   • Designations granted by the court for Executor and Administrators.
   • Full independent powers. May not need court confirmation.
   • Limited powers. Needs court confirmation
   • List, Market, Sell. Executor/Administrator lists property with a competent, experienced Probate Agent, who assists in negotiating satisfactory terms.
3. Accepting an Offer
   • The offer accepted must be 90% or more of the Probate Referee’s    appraisal.
   • A notice of purposed action is sent to all heirs and beneficiaries
4. When Court Confirmation is necessary
   • When an offer is accepted, a petition seeking confirmation of the sale is filed with the court and set for hearing.  A copy of the petition and details about the sale are mailed to all heirs and beneficiaries, also known as notice of proposed action.
5. Over-Bidding
   • At the Court Confirmation hearing, the court allows for the possibility of an over bid.

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.

Conservatorship: A court proceeding wherein a judge appoints a responsible person (conservator) to care for another person (conservatee) who cannot care for him/her self or his/her finances.

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.

FREQUENTLY ASKED QUESTIONS

Please call us for a better understanding of any of CLarifcation you may need.

What is a Trust?

A situation in which one person, (or entity) holds the legal title to a property for the benefit of another.

What is a Probate?

Probate is the court-supervised administration of a decedent’s estate. The probate proceeding involves “proving the will” (if there is a will), appointing the personal representative, determining the decedent’s assets that are subject to probate, paying outstanding debts and disbursing funds to the beneficiaries. In some cases, the decedent’s estate includes real property that must be sold under the court’s supervision.

Why do some probate properties not require court confirmation?

If a probate property is a Trust Sale or if the Executor/Administrator of the estate has been granted “full independent powers” under the Independent Administration of Estates Act (IAEA), the sale may not require court confirmation.

If the Administrator has full independent powers, he or she may elect to list the property for sale. Once an offer is accepted, the estate’s attorney mails out a Notice of Proposed Action stating the terms of the proposed sale to all the heirs. The heirs then have 15 days to object to the sale. If there is no objection within 15 days, the sale goes through without any court hearing required. (Regardless of the details of the probate transaction, sellers are strongly encouraged to work with a professional probate attorney to protect the estate’s best interests.

What is a Property Profile?

A Property Profile is a report that provides details on a specific property. It contains information such as square footage, number of bedrooms and bathrooms, lot size, zoning information, use code, tax information and ownership information. Additionally the profile has the recorded documents, such as the grant deed, quitclaim deed and copies of deeds of trust. The report can also contain sales comparable, school information and neighborhood information. A complete, current property profile is essential for setting the price of the real property and for determining problems that may interfere with the sale.

Should I make repairs before listing a probate property for sale?

No. In California, probate properties are sold “as-is.” If you make repairs you may inadvertently conceal something about the condition of the property. Even a coat of paint can unintentionally conceal a defect. Except for removing personal possessions, clearing out trash and cleaning up the entryway and yard, it is important to leave the property in its present state and let the buyers do their inspections and satisfy themselves as to the condition of the property.

What do I need to do to prepare the property for sale?

Your agent should be able to recommend a number of qualified specialists to help you prepare the property for sale, including removing belongings and obtaining professional cleaning. Your agent should also assist you in conducting an inventory of the real property for sale and in preparing a comprehensive property profile.

How can I choose the best list price?

Your agent should provide you with detailed market data, called a Market Value Analysis. This includes the selling prices of similar properties in the neighboring area. It will also include in-depth information on recent sales in the area, such as price per square foot and the number of days the property was on the market. Taking into consideration the information in the analysis as well as other intangibles of the market, your agent will be able to help you determine a listing price that is appropriate for the market and will attract the greatest number of qualified buyers.

Once a property is listed, how will it be marketed?

They include signage on the property; add to the MLS, Realtor.com, Google, Zillow, Trulia, Facebook internet advertising, with us your home will be marketed on 360 of the top Real Estate Websites... Your agent will conduct showings for interested buyers and their agents will answer questions about the property and will continue to promote the property in order to secure the highest offer. Your agent should also communicate with neighbors in the immediate area, keeping them informed about the price and other details about the property. Ask your real estate agent for a written marketing plan and for explanations of how various types of marketing will benefit the sale.

Do I have to pay up front for all this marketing and advertising costs?

No, there should be no advertising or marketing up-front fees.

Is the paperwork different in a probate sale than a traditional real estate transaction?

Yes. In most real estate transactions, the seller is required to disclose information about the property, including defects, construction conducted without a permit, evidence of pest or water damage, etc. Because sellers of real property through probate, trust or conservatorship may never have lived in the property that’s being sold, special disclosure forms take this into account. Probate and trust sales require special disclosures, listing agreements and purchase contracts. In California, the California Association of Realtors has standardized forms specifically for probate transactions.

How do you determine the minimum bid in court at the court confirmation hearing?

The minimum first overbid price is set by a statute in the Probate Code. Calculating the overbid assumes that there is an accepted offer on the property. The minimum overbid amount is 10% of the first $10,000 plus 5% of the balance of the accepted offer.