The information on this page pertains to the State of California.
In Santa Clara County, probate gets managed in the Probate Division of the Superior Court. In other states, probate and estate cases get managed by the Surrogates Court.
Selling the house owned by deceased persons differs from non-probate sales for several reasons:
- When the probate court appoints a person the executor of an estate that person becomes an officer of the court. They must follow the probate process.
- If the deceased person died without a Will, the person appointed gets issued Letters of Administration.
- When the decedent died with a Will, and the named Executor gets appointed to administer the estate, Letters Testamentary get issued. A Will may grant the power to sell the real property.
- Before an executor or administrator can sell a house, they must have the authority by the probate court.
- The official appointment is when the probate court judge signs the Order for Probate and issues the letters.
- Once appointed, they assume fiduciary duties and liabilities in managing the estate’s assets including selling the house.
Fiduciary Duties Selling Property
Fiduciary duty means a legal responsibility that involves a high standard of care to manage the property for a person.
Most times when executors sell property they are selling the most valuable estate asset.
When an executor is selling the house, it only makes sense to hire a real estate agent experienced in probate, knows the probate process, and understands an executor’s duties and legal obligations.
Why an Executor Needs an Experienced Real Estate Agent
An executor who needs an agent to sell the property is wise to hire a real estate agent with specialized knowledge, training, and experience with the probate court process.
Hiring an inexperienced person with no knowledge or experience in probate could lead to a claim for a breach of fiduciary duty.
Real estate agents have a fiduciary duty to their clients. Executors have a fiduciary duty to manage the estate with a high standard of care.
An executor selling property needs to consider if hiring an agent without probate experience meets the high standard of care test.
Once the agent gets hired to sell real estate, the agent will:
- Research market data and determine the market value
- The market value must be fair market value
- Get the listing agreement and all probate addendum signed
- Open escrow
- Give the escrow officer a certified copy of the death certificate and letters of administration or letters testamentary
- Prepare the disclosures for signing. Probate sales are exempt from certain disclosures.
- Prepare the property for market.
- Order inspections.
- Take marketing photos
- Communicate to probate process to prospective buyers and agents and notify if court approval is required.
- Market the deceased persons home to sell the real estate
- Continue to market until the property is sold!
Property Valuation Process
As part of the probate process, a probate referee also puts a value of the property on the inventory and appraisal as of the date of death. The value of personal property is also included in the inventory and appraisal.
The probate process for an executor selling property gets detailed on the Independent Administration of Estates Act page.
Beneficiaries objecting to the sale of the deceased person’s home must send their objection in writing to the executor or administrator. Beneficiaries approving the sale consent to the proposed action. Objecting and consenting to a proposed action under the Independent Administration of Estates Act gets done on page 2 of the Notice of Proposed Action. If there are objections, it will delay the sale and the home buying process.
What is the time frame to sell the house?
If an executor of an estate intends to sell the property, they must file a status report or petition for final distribution within one year after the letters get issued.
After the probate court approves the order for final distribution, the inherited property gets distributed to the heirs and beneficiaries.
Kathleen Daniels is a California Real Estate Broker practicing real estate full time since January 2003.
Our team incorporates project management skills and systems set up to track and monitor the entire probate process in selling a property.
Information provided is for general information. Always seek legal advice from an attorney licensed to practice law.
Probate Referrals and More Help
If you need referrals we can help with:
- probate attorneys to probate an estate
- elder law for long-term care or create a power of attorney
- probate lawyers for estate plans, to create a living trust to avoid probate
- estate administration
- trust administration and tax law
We network with probate professionals throughout the State of California. If you need an attorney or real estate agent referral, let us know. We are here to help.