Probate FAQs

An arrangement whereby a person (trustee) holds the legal title to a property for the benefit of one or more beneficiaries.

The legal process through which a court of law makes sure that when a person dies his/her debts are paid and his/her property is distributed according to his/her Will.  If a person doesn’t have a Will, then the estate is still probated but according to the probate law of that state.

If the Executor/Administrator, otherwise known as the Personal Representative, 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, s/he 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).

When someone passes away with a complex estate – meaning they owned assets such as real property, various investments, or more, the probate court will authenticate the individual’s Will.

Authenticating the will establishes the identity of the person or persons who have rights in the property under the Will, or who have rights under the laws of succession if the decedent died without a Will (intestate). This process often involves a difficult series of negotiations and court hearings that can create family dissension. 

It’s easiest to think about probate as a supervised process that ensures the proper beneficiaries receive the appropriate titles and assets from your estate. In cases where no Will or trust is present, it is the court’s job to appoint someone to represent the estate. This personal representative will administer all the things an executor would if a Will had been present. Some assets and property in an estate will always go through probate, while others (like those in a Trust) will not. 

Successor Trustee Sales typically do not need court confirmation, but when there is dissension between the heirs it is prudent to sell the property through the court confirmation process.  This is true in Probate as well as when the Personal Representative has Full Authority but there’s dissention between the heirs.

A dual agency is created when a sole agent represents both seller and buyer, which is widely accepted by the real estate industry and by the courts with proper notice.

It is my personal opinion that a breach of the Estate’s Realtor fiduciary responsibility to the seller is near unavoidable when he/she represents both parties.  The job of the seller’s Realtor is to get them the highest price; the job of the buyer’s agent is to get them the lowest price. My fiduciary responsibility is to the seller, to provide confidentiality, competitive advantage, and to negotiate the highest price possible while adhering to the complexities of the probate process.

Whether you make repairs or not, probate and trust properties are sold “AS IS” without warranties expressed or implied. The market dictates whether improvements will have a return on investment, but will the increase in value offset the additional liability risk? Before making repairs, it may be prudent to have a home and pest inspection to determine any major issues. You don’t want a nest of bees to be opened during repairs. If repairs are made, make sure the Realtor photo documents any defects before they are buttoned up or painted over.

It depends on the property’s condition. If the property is truly a “contractor special”, e.g., it has sloping floors, mold, foundation issues, etc., then no. But if the property has good bones with minor deferred maintenance, then I recommend the seller to get inspections completed and also recommend buyers have the property inspected as well. Providing inspections upfront eases buyer fears and limits further negotiations after the buyer gets their own inspections.

Your agent should be able to recommend qualified specialists to help you prepare the property for sale, including removing belongings and obtaining professional cleaning, gardening, DMV issues, etc.

Yes, hands down, for liability reasons, it is in your best interest to work with licensed, insured, and bonded contractors.

Yes, your Realtor should negotiate payment, or partial payment at close of escrow with the vendors. If the vendor needs payment sooner, I front the cost and take reimbursement at the close of escrow. 

At times, court supervised sales must have the offer date published 3 times over 15 days in the local newspaper. If this is not adhered to, the judge will make you start over. When court confirmation is not necessary and the property is priced aggressively (below market value) AND it’s a seller’s market, then an offer date will generate multiple offers.

No…for example, transfer tax in San Francisco is ~$7,500 per $million and is typically paid by the seller. Since the late 80s I’ve been successful in negotiating the buyer pick up this cost.  Make sure your agent makes it clear in the “Offer Instructions” that the buyer pays the city/county transfer taxes. Another closing cost that is typically paid by the sellers that I’ve been successful at negotiating is the cost ($300-$3,000) to bring the property into compliance with City Energy and Water ordinances before close of escrow.  Make sure your Realtor is clear in the “Offer Instructions” that this shall be paid by the buyer. I’ve negotiated this successfully 95% of the time.

Your agent should provide you with detailed market data, called a Comparable Market Analysis. It includes the selling prices of similar properties in proximity, selling price per square foot, bedrooms, baths, lot size, number of days on the market, etc. 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.

Your agent should pursue several strategies to expose your property to likely buyers. They’ll include, but are not limited to signage, internet advertising, personal showings, neighborhood mailers, exposure to relocation companies, weekend and evening open houses, broker opens, and personal networking among successful agents who may represent qualified buyers. Your agent should be able to clearly explain the probate process to other agents, as well as answer specific questions 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.

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.

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 5% over the accepted offer plus $500.  For example:  the minimum overbid amount on a $1m offer would be $1,050,500.  

You are free to choose any real estate agent you like, but it is important to remember that probate real estate sales are complicated legal matters. Most real estate agents are not experienced or well-versed in the probate process. It makes sense to choose an agent who specializes in probate and trust real estate, and who understands the intricacies of pricing, marketing, and presenting such properties. Your agent will represent your interests throughout the transaction. Being able to understand and explain the process is essential.