The California Probate Code governs the Independent Administration of Estates Act also referred to as IAEA.
What is the Independent Administration of Estates Act?
It is a series of laws that allow an executor or administrator to manage or administer most aspects of the decedent’s estate without court supervision.
An estates administrator could be a surviving spouse, someone named in the Will, a relative of the deceased, a friend, or interested person.
- Authority to act under IAEA may get granted by the court upon petition by the personal representative or given by the deceased persons will.
- The person who petitions the court gets granted authority when the probate proceedings get started.
- This can also get done anytime during the probate process.
- If the decedent’s will prohibits IAEA, or an interested party provides the court good cause for why the estate should not get administered under IAEA, the estate cannot get administered under IAEA.
- An objecting interested person who provides good cause to the court may convince the court to grant restrictions to the personal representative’s powers under IAEA.
- The authority to act then becomes limited authority versus full authority.
Full Authority vs Limited Authority under IAEA
Powers of a personal representative get granted when the judge grants Letters. Administration of the estate begins after the Letters get issued by the court. Letters testamentary or letters of administration grants the level of authority and if a bond is required.
- Under full authority the executor or administrator may sell real property, exchange, grant an option to purchase, or borrow money with a loan secured by real property at their discretion.
- Under the limited authority, the personal representative has the power the act under IAEA except:
- The powers to sell, exchange, grant an option to purchase or borrow money with a loan secured by a loan on the real property.
If the Will prohibits IAEA, then neither authority gets granted by the court.
Are price and terms of real property sold governed by law under IAEA?
- With full authority, the sale of real property can happen on the terms and at the price determined by the executor or administrator.
- The sale is not subject to overbid and not subject to court supervision.
- The personal representative has a fiduciary duty to maximize the estate’s assets.
- Maximizing the estate’s assets is not the same as an estate plan designed for asset protection.
- The law that requires the price to be at least 90 percent of the appraised value does not apply under full authority.
Does a representative have to give the notice to sell the property?
- A Notice of Proposed Action must be given when selling real property with full authority, without court supervision.
- The personal representative must notify all entities and persons that have an interest and therefore may get affected by the proposed sale.
- An exception is if the parties have waived notice or provided consent to the sale, in writing.
- The parties that need to get notified are:
- All persons entitled by the Will
- All known heirs entitled by law to property of a person who died without a will
- Anyone that requested special notice.
- If any property is to go to the State, the Attorney General must get notified
How does the personal representative notify the parties?
- Notice gets given on a Notice of Proposed Action form.
- The notice provides the terms of the proposed action. For example, the sale of real property.
- The form must include the following information:
- Name and mailing address of the personal representative
- Telephone number and name of whom to contract to get more information
- Description of the proposed action which describes the property, terms of the sale, the price and brokerage commissions
- The date upon which the action will occur
How is the Notice of Proposed Action Given?
The notice gets mailed or delivered to all parties entitled to receive it. It must get mailed no less than 15 days before the proposed action takes place. The notice gets prepared and managed by the probate attorneys for the estate. When mailed, the notice gets sent to the person’s last known address via first class mail.
- This is not the same as providing death notices or notice of death.
Can a person who receives the Notice of Proposed Action object to the sale?
- Yes. Anyone who receives a notice can object to the proposed action by mailing or delivering their objection in writing to the personal representative at the address listed in the notice.
- An objecting party may request the probate court to restrain the personal representative from acting without court supervision.
- If such a request gets made to the court, the court must grant the request.
- After the personal representative receives the written objection, or a restraining order gets issued, court supervision is required in order for the personal representative to take any action pertaining to the property.
- The short answer is no. A representative does not have to sell the property under IAEA. The deciding factor will be what is best for the estate. Many factors get considered. For example:
- It is much quicker to sell real property belonging to the estates of deceased persons under IAEA than it is under a court-supervised sale.
- The court need not confirm the sale.
- No overbidding under IAEA
- All terms and contingencies regarding the sale get agreed to by the person appointed to administer the estate
- Market conditions and general economic factors
- Overbids may increase the sales price and the amount that goes to the estate
- The manner of sale should be what is fit and proper to produce the maximum benefit to the estate.
- Time to market is crucial when a property is sitting empty. Does it make sense not to sell under IAEA with full authority?
How does the sale of real property under IAEA affect the probate listing broker’s duties?
- The personal representative’s power to grant a probate broker the exclusive right to sell property is only for 90 days.
- Extensions are also for 90 days.
- If the total time of the original listing and all 90-day extensions to the listing exceed 270 days, then the personal representative must provide a Notice of Proposed Action to all interested parties.
- The probate listing broker must comply with agency disclosure laws and inspect the property and disclose what their inspection reveals.
- The probate broker may contract with the personal representative the amount of commission due to the broker without court approval.
Probate and trust administration laws vary from state to state. The information provided here refers to IAEA in the State of California.
- California transfers title to real property by granting title in a deed.
- Distribution of the estate’s assets gets managed by the probate process.
- Property of the deceased may get distributed from time to time throughout the probate process.
- Liquidation and distribution of accounts and estate assets could take place at one time.
- There might be no Will or it could be special provisions granted in the Will.
Always consult with a probate attorney to understand the legal proceedings to probate the estate of a deceased person.