How Do I Sell Real Property as Part of the Probate of an Estate in California?
Full Question:
Answer:
The answer will depend on all the facts involved, such as the value of the property and the status of the probate action. The sale of real property by an executor or administrator is typically made by a fiduciary deed. If the transfer is made pursuant to a court order in probate of an estate, a disclosure statement isn’t required.
With one exception, if the personal representative wishes to sell real property that is part of the probate estate, the property can only be sold with court approval and notice to those who have an interest in the property. The sales price must be for at least 90% of the appraised value.
The one exception is where the personal representative has been given authority to act under the Independent Administration of Estates Act (IAEA) and the property is not being purchased by the personal representative or his/her attorney. In such cases, the 90% rule and the requirement that the personal representative obtain the highest and best price for the property reasonably attainable do not apply . The request for authority under the IAEA may be made at any time, though this is usually done as part of the initial petition for probate.
The personal representative must give notice of the sale to all interested parties. The notice must include all significant terms of the sale, including the sales price and the amount of any commission. Notice need not be given if all interested parties may sign a waiver of notice or a consent to the request for authority.
In a sale of one to four units of owner-occupied property located in California where a loan secured by the property is in default, the sale agreement must comply with California's relatively complicated pre-foreclosure sale statutes. it is recommended that anyone named in a will as receiving an interest in the property, any surviving spouse and anyone receiving an interest under the intestacy laws (if there is no will) should be considered an owner.
For further discussion, please see:
http://www.methvenlaw.com/Practice-Areas/Real-Estate/Sales-of-Real-Property-in-Probate.html
http://www.scselfservice.org/probate/prop/HowtoAdministertheEstate11.htm
http://probatesandiego.net/Sales_of_Real_Property.html
Please see the following CA statutes to determine applicability:
7261. If a transaction affecting real property in the estate is
executed by the personal representative in accordance with the terms
of a court order, the instrument shall include a statement that the
transaction is made by authority of the order authorizing or
directing the transaction and shall give the date of the order.
7263. If an order is made setting apart a probate homestead,
confirming a sale or making a distribution of real property, or
determining any other matter affecting title to real property in the
estate, the personal representative shall record a certified copy of
the order in the office of the county recorder in each county in
which any portion of the real property is located.
See also:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=10001-11000&file=10300-10316
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13200-13210
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1102-1102.17