Introduction to Probate – Part 5; Selling Real Estate in Probate

Keith B. DunnaganToday we step back into our series on Introduction to Probate. Often times the primary asset of an estate is real estate and Attorney, Benjamin Eagleton addresses the process of selling real estate through a probate.

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing me at kbdunnagan@bpelaw.com.

Also, remember that we do legal presentations for business and community organizations. If your group would like to schedule a presentation related to estate planning, please contact me to setup a date and time.
 

Introduction to Probate – Part 5; Selling Real Estate in Probate

By: Benjamin H. Eagleton, Esq.

Benjamin H. Eagleton, Esq.In Parts 1 through 4 of this series, we covered generally the process and procedures that are included in filing the Petition, having a Personal Representative appointed, and taking control of the Estate assets. In this Part we discuss and review Selling Real Estate in Probate Administrations. More often than not, real estate must be sold during the Probate process and the sale proceeds divided and distributed to heirs or beneficiaries of the Estate. What’s involved? How’s it done? Let’s take a look…

Full Authority vs. Limited Authority

When the Personal Representative is appointed, be it either an Executor or an Administrator, the Court’s order will grant the Personal Representative (1) Full Authority, or (2) Limited Authority, to administer the Estate. The primary advantage of full authority is the Personal Representative can take most actions, including Selling Real Estate, without court supervision. This is a huge benefit because it saves time and money. In my practice Full Authority is always requested. However, full authority is not always granted by California Courts. Often times there is no Will (which generally authorizes Full Authority), or Waivers of Bond cannot be received from all heirs (see Part 3 on Probate Bonds).

Private Sales vs. Public Sales

Real Estate can be sold by the Personal Representative in a Private Sale, by entering into a listing agreement as discussed below, or at Public Auction. Real Estate sold in a Private Sale requires an appraisal within one-year of the sale time, and the sale price cannot be less than 90% of that appraised value. With a Public Auction there is no restriction on having the property appraised, nor is there a restriction on the sale price. However, when sold at Public Auction the real estate still may not be sold for an amount disproportionate to its value, and must be sold within the reserve amount.

Listing Agreement

If Full Authority has been granted, the Personal Representative can freely enter into a listing agreement on behalf of the Estate. A real estate agent or broker, can then market the real estate for sale and the Personal Representative can accept the highest offer. However, if Full Authority has not been granted- the Personal Representative does not have authority to enter into a listing agreement. This means that the real estate agent or broker, will not be able to enforce the listing agreement, and that the Personal Representative may be in breach of his or her duties. A Personal Representative with Limited Authority must obtain permission before entering into an exclusive listing agreement by filing a Petition. Commissions must be approved, and it must be shown to the Court that an exclusive listing agreement is necessary and advantageous to the Estate. The remainder of this Part will discuss only Selling Real Estate with Full Authority- we’ll discuss the nuances to selling with Limited Authority in a future blog.

Regardless of receiving Full Authority or Limited Authority, a Personal Representative must enter into the listing agreement in their capacity. This may be “Jane Smith, Administrator of the Estate of John Smith,” or “John Smith, Jr., Executor of the Estate of John Smith.” Also, Agents and Brokers should use the Probate Listing Agreement and should attach the Probate Advisory to any Purchase and Sale Agreement. Delays can occur, and it’s important to insulate the Estate from Specific Performance lawsuits.

Notice of Proposed Action

If Full Authority has been granted, the Personal Representative has entered into a listing agreement, and an offer has been accepted, the Personal Representative needs only to provide Notice of Proposed Action. This Notice, will include terms of the sale, and unless an objection to the sale is made timely, the Personal Representative can transfer the property and close escrow.

Certified Letters Testamentary or Letters of Administration

Before escrow can close, the Personal Representative must obtain a certified copy of their Letters to be recorded in the County where the real estate is located. Without this authority recorded, the sale cannot be completed.

Estate Bank Account

If one has not previously been opened, before the close of escrow, the Personal Representative should generally open an Estate Bank Account to which the net sale proceeds can be wired.


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal or tax advice. Every person’s situation is different. If you are facing a legal or tax issue of any kind, get competent legal and accounting advice in your State immediately so that you can determine your best options.