Executors Sell Real Estate | What Executors Need to Know

When Executors sell real estate in probate, there are important legal responsibilities and procedures they need to understand. Probate real estate sales are not one-size-fits-all. Each transaction depends on the circumstances of the estate, the authority granted to the Personal Representative, and the property being sold.

Executors Selling a Probate Home

1. Probate is a legal process generally administered by the Superior Court in the California county where the deceased person was domiciled.
2. Probate involves expenses, including court filing fees and other costs associated with administering the estate.
3. California probate attorneys may receive statutory compensation for ordinary services, generally calculated according to the gross value of the estate under California Probate Code §§10810 and 10811. Extraordinary services may result in additional court-approved compensation.
4. Executors and Administrators may also receive statutory compensation for administering the estate, subject to applicable California probate laws and court approval.
5. Probate administration commonly takes many months and sometimes considerably longer. However, an Executor may be able to sell estate real property before the probate estate is ready for final distribution and closure.
6. Disputes among interested parties, contested proceedings, and estate litigation can substantially extend the probate process.
7. The court-appointed Executor or Administrator acts on behalf of the estate when selling probate real property. Being named as Executor in a Will does not, by itself, provide authority to sell estate property.
8. Once appointed by the Probate Court, the Personal Representative becomes an officer of the court and assumes fiduciary duties and responsibilities for administering and protecting estate assets.

Can Executors Sell a Probate Home Without All Beneficiaries Approving?

Yes. An Executor may be able to sell probate real estate without obtaining approval from every beneficiary. The requirements depend on the authority granted by the Probate Court, the terms of the Will, and applicable California probate laws.

Probate is not one-size-fits-all. As Kathleen Daniels often says, “Probate estates are as unique as fingerprints. No two are alike.”

• Before administering estate property, the proposed Executor or Administrator generally petitions the Probate Court for appointment.
• If the petition is granted, the court signs an Order for Probate.
• The court issues Letters Testamentary to an Executor or Letters of Administration to an Administrator. These documents provide evidence of the Personal Representative’s authority to act on behalf of the estate.

Did the deceased person leave a Will?

• A Will identifies the deceased person’s wishes regarding the distribution of estate assets and may include instructions concerning real property.
• The Executor must administer the estate in accordance with the Will and applicable California probate laws.
• If the Will directs the sale of a particular property, the Executor should consult the estate’s probate attorney regarding the requirements and any restrictions.
• After payment of estate debts, expenses, and other obligations, the remaining estate assets are distributed according to the Will and court orders.

Is the probate without a Will?

• When someone dies without a valid Will, California intestate succession laws generally determine who inherits the estate.
• The court typically appoints an Administrator and issues Letters of Administration.
• Whether the estate has a Will or not, the Personal Representative must have the appropriate legal authority before selling estate real property.
• The Personal Representative acts on behalf of the estate, not in an individual capacity.

Beneficiaries Approving Process

When a Personal Representative has full authority under the Independent Administration of Estates Act (IAEA), a probate real estate sale generally requires a Notice of Proposed Action before proceeding without court confirmation, unless the applicable notice requirements have been satisfied through valid waivers or written consents.

The Notice of Proposed Action is provided to the persons legally entitled to receive it. Depending on the estate, these may include affected beneficiaries, heirs, and others entitled to notice.

• Consent: A person entitled to notice may consent in writing to the proposed sale.
• No objection: If proper notice is given and no timely objection is received, the Personal Representative may generally proceed without court confirmation.
• Objection: A person entitled to notice may submit a written objection to the Personal Representative at the address stated in the notice. A timely objection can prevent the sale from proceeding without court supervision.

An objection does not necessarily mean the property cannot be sold. The Personal Representative may seek court authorization to proceed.

Unanimous beneficiary approval is not automatically required to sell probate real estate. The Personal Representative must instead comply with the authority granted by the court and applicable notice and sale procedures.

Independent Administration of Estates Act (IAEA)

Under the Independent Administration of Estates Act (IAEA), the Probate Court may grant a Personal Representative full or limited authority.

• Full authority: Generally permits the Personal Representative to sell estate real property without court confirmation, provided applicable Notice of Proposed Action and other legal requirements are satisfied.
• Limited authority: Does not permit the Personal Representative to sell estate real property independently. Court-supervised sale procedures and confirmation requirements generally apply.

Because beneficiary rights, Will provisions, and court orders can affect a proposed sale, Executors and Administrators should consult their probate attorney before proceeding.

The Probate Process | Laws Designed to Protect Estate Assets

California probate laws are designed to protect estate assets and ensure that Personal Representatives fulfill their legal responsibilities.

• Personal Representatives act on behalf of the estate and must administer its assets according to California probate law and applicable court orders.
• Executors and Administrators owe fiduciary duties to the estate and its beneficiaries and must act prudently, honestly, and in the estate’s best interests.
• Probate laws establish procedures for selling estate real property, including notice requirements and court confirmation when applicable.
• An Executor with full authority under the Independent Administration of Estates Act may generally sell estate real property without unanimous beneficiary approval, provided applicable legal requirements are satisfied.
• If a Personal Representative breaches their fiduciary duties, they may be held accountable by the Probate Court and potentially face personal liability.

When disputes arise, the Probate Court may be asked to resolve them based on the evidence and applicable law.

Estate litigation can be expensive and time-consuming. Whenever possible, resolving disagreements among heirs and beneficiaries can help reduce delays, preserve estate assets, and minimize legal expenses. However, some disputes require court intervention to protect the interests of the estate and its beneficiaries.

Hiring a Certified Probate Real Estate Specialist

When an Executor needs to sell a probate home, often one of the estate’s most valuable assets, fulfilling fiduciary responsibilities is essential. This includes exercising reasonable care and protecting the estate’s interests throughout the sale.

Hiring an experienced Certified Probate Real Estate Specialist who understands California probate procedures and the Executor’s responsibilities can help the Personal Representative navigate the sale while fulfilling those duties.

Probate Real Estate Agent Duties

A probate real estate agent has professional and fiduciary responsibilities to the seller. When representing an estate, the agent works with the court-appointed Personal Representative to market and sell the property in accordance with applicable probate requirements.

Choosing an agent with specialized probate training, knowledge, and experience can help the Executor protect the estate’s interests and navigate the complexities of a probate real estate sale.