So, you need to go to Probate Court to dispose of some Real Estate and are unsure of what to do. You’re not alone. About 80% of probate cases in California involve Real Estate. In fact, Superior Court downtown on Hill St. reports about 600 new cases every 2 weeks! Most people feel overwhelmed by what is involved in selling Real Estate through probate, not even sure where to start. This article addresses those concerns.
Let’s start with some administrative issues. You’re not required to hire an attorney, but if you don’t know the process, it’s best to hire a professional. Attorneys have been trained to handle the complications that often arise, even in seemingly simple cases. Calculating attorney fees for a formal probate is straightforward and can be found in California’s Probate Civil Code §§ 10810 &10811. As of April 8, 2013, all probate cases need to be filed in Room 429, at the Superior Court downtown (111 N. Hill St.). There are a few exceptions, but you should call the Court for a clarification. Any heir can begin the probate process, but the Court will appoint the estate’s representative (the “Executor/Executrix” named in the will, or an “Administrator,” if no will exists or the individual named in the will cannot or will not serve). To be appointed the Estate’s representative, you must typically post a bond equal to the value of the Estate, unless a bond is waived in the decedent’s will. You can also request the bond be waived if the beneficiaries are all adults and in agreement about the disposition of the Estate; however, even in those cases, the Court may require a bond if it feels there’s a need. Simple…right?
The Probate process begins with the filing of a “Petition for Probate” (Form DE-111), along with a notification of the Petition in the local newspaper. The form is fairly self-explanatory, but if you are representing yourself, you need to type in, “Petitioner in pro per,” after the words, “Attorney For,” in the top box. Although there’s no specific time frame for filing a Petition, if you’re the Executor/Executrix named in the will, you must file the petition (and the will) within 30 days of your learning of the death, or you may be found to have waived your right to appointment. Another section at the top of the form is of great importance when it comes to handling Real Estate. In the “PETITION FOR” Section, you can request to act independently of the Court’s oversight for matters related to the estate. If you lack this authority, the Court will schedule a hearing for any proposed Real Estate sale. At this hearing, the administrator will request approval of the sale to the successful bidder, but any person may “out-bid” the offer being made by the administrator (based on an “over-bid” calculation set forth in the Probate Code). The highest qualified bidder will get the Court’s approval and will be the final buyer.
You are free to choose your own Real Estate agent to market and sell the property. However, use caution in this area: The agent you use should have a working knowledge of the probate process. Some agents will tell you they have a Buyer for your property, simply to get in the door to try to convince you to list with them. This is the last thing you need during this difficult time. It’s best to discuss your choice of a Realtor® with your attorney.