What is "Probate"?

The probate process can be understood after watching the video on the left hand side. This process requires court involvement that includes appointing a representative of the estate, determining the validity of a will, producing an inventory and appraisal of the decedent’s property, and transferring property to the heirs or beneficiaries of the estate.

What does it mean to "probate" a will?

 

The word probate means to prove or validate. Probate is the procedure by which an application is made to the court to have the will of the deceased testator (the person who made the will) validated. The court will also look at the will of the deceased and confirm the appointment of the person(s) name as executor in the will.

When do you need to probate an estate?

 

The letters probate provides official recognition of the authority of the executor over the testators estate. The executor may need this proof, for example, to recover money owing to the testator or to transfer certain assets in accordance with the instructions in the will. In addition, letters probate may be necessary if the executor expects that someone may contest his or her right to act as an executor.

What happens if a person dies without leaving a will?

 

When someone dies without a valid will, they are said to have died “intestate.” In such cases, the probate court must appoint someone to act as administrator of the estate (rather than the executor). The court makes this appointment when someone qualified to act in this capacity makes an application to the court. Usually this would be a member of the family, or if there is none, a close friend of the deceased.

Probate Q and A

Q 1. Can you give me a general description of how a sale of real property in probate works?

The process of administering a decedent‘s estate is referred to as “probate,” and is generally supervised by the probate court. A personal representative is the person or entity charged with the responsibility of administering a decedent’s estate (A personal representative is either: An executor (executrix) who is named in a will; or An administrator (administratrix) who is appointed by the court when there is no will, when the will does not name an executor or when the named executor is unable or unwilling to serve. The personal representative is charged with the fiduciary responsibility of gathering the assets and paying the debts of the decedent in such a way that the beneficiaries or heirs of the decedent receive the maximum inheritance. The personal representative usually will hire an estate attorney to handle the legal aspects of the probate. Most business dealings are through the estate attorney.

Q 2. When may the personal representative sell estate property?

Estate property may be sold by the personal representative when: The sale is necessary to pay debts, devises (gifts to persons named in the will), a family allowance, expenses of estate administration, or taxes; The sale is to the advantage of the estate and in the best interests of the interested persons; The property must be sold according to the terms of the will; or Authority is given in the will to sell the property. Estate real property may be sold by private sale, public auction, or a different method specified in the will of the decedent. A private sale is one in which bids or offers are independently solicited, while a sale by public auction invites concurrent competitive bidding.

Q 3. Are there any restrictions on the sales price of estate real property?

Yes. The sales price of a private sale of estate real property subject to court confirmation must be at least 90 percent of its appraised value set within one year prior to the sale. All terms of a sale, including the minimum required deposit, are generally subject to court approval and local rules of court which vary from county to county. Generally, offers with contingencies of any sort (e.g., financing, sale of home) are not approved by the court. Sales of real property by the personal representative with full authority under the IAEA do not have the same restrictions and may contain all of the same contingencies and provisions as non­-probate sales of real property

Q 4. Are prospective purchasers required to submit a deposit of 10% of the purchase price when submitting a purchase offer on a probate property or at the confirmation hearing?

California law does not require a 10% deposit. Some personal representatives may request such a deposit which reflects the preference of those persons and the traditional practice in many areas. When listing a property an agent may wish to discuss with the personal representative the pros and cons of asking for a lower deposit amount which could possibly result in more and/or higher offers.

Q 5. What is a “Notice of Sale” and is it required prior to selling estate real property?

Notice of Sale must be published prior to the sale of estate real property unless the will directs the real property to be sold or gives authority to the personal representative to sell the real property or the personal representative has full authority under the IAEA. The Notice of Sale provides the public with required information concerning the sale and will typically be handled by the attorney for the estate.

Q 6. What is meant by court confirmation of the sale of real property?

The personal representative is required to report the sale and petition the court for confirmation of the sale within 30 days of accepting an offer. Should the personal representative fail to perform these acts in this time period, the purchaser may do so on his or her own behalf. All estate real property sales must be confirmed by the court except for sales of property by a personal representative with full authority under the IAEA. At the confirmation hearing, the original sale may be subject to being overbid by another purchaser. The court will confirm the sale to either the original bidder or to an over-bidder and normally approve payment of the brokerage commissions. Title will pass to the successful buyer only after the terms of sale have been met, the court has confirmed the sale and the personal representative has executed a conveyance to that buyer.

Q 7. May the personal representative enter into a contract with a licensed real estate broker to sell estate real property?

Yes. The personal representative may enter in to an exclusive right to sell contract with a broker for an original period of not more than 90 days plus one or more extensions each limited to the same periods. This real estate broker may cooperate with other brokers and may advertise the property on the MLS.