Only the legal owner of a property can sell the property. So, when the owner of a property dies, if that person made a will or died without a will (intestate), their property will go through Probate ( a court-supervised process) in order for their beneficiaries or heirs to be able to receive title to their property and be able to sell it. To avoid Probate, the owner of the property before death may create a Trust (a document similar to a will that dictates what happens to property after the owner dies) designating who will own the property after they die.

Selling a property that was placed in a Trust is (most often) easier than selling it through Probate. It is also faster because (usually) the court will not have to oversee any part of the sale. There is no special action required of the buyer either. Still, whether a property is sold in Trust or Probate, it is not a traditional real estate transaction. You will need an experienced real estate broker to ensure all the correct forms, documents, publications and/or court deadlines are met.

If the property is in a Trust, a court will not need to oversee the sale process, so the sale proceeds are available to the owners of the property (the trustee, successor trustee or heirs) as soon as the deal closes. In Probate, the beneficiaries/heirs may not receive the sale proceeds until the estate is finally administered (although some courts may permit early disbursement of funds). This may take between six months to a year, or longer. That does not mean the property is not sold earlier. The real estate may be sold fairly quickly, even as soon as the first three months of Probate, when listed with an experienced broker, but the proceeds will be held in a special account for the benefit of the beneficiaries until the final administration of the estate.

The Overbid Process only takes place in Probate real estate transactions (and Conservatorships), when the Personal Representative of the estate is granted Limited Authority to administer the estate under the Independent Administration of Estate Act. In other words, if the house (property) is held in Trust or it is in Probate, but the Personal Representative has Full Authority, there is no Overbid Process, and an accepted offer begins the escrow process.

In a Limited Authority Probate Sale, the personal representative must publish a notice relating to the sale in a local newspaper of general circulation in the city where the decedent resided, then file the "Report of Sale and Petition for Order Confirming Sale of Real Property” and attend the court confirmation hearing where the sale will be subject to "overbids". The Overbid Process is similar to an auction, where any individual may come forward and attempt to outbid the original proposed purchaser. For example in California, the Probate Code §10311(a)(1) gives the computation on the overbidding formula, which is 10% percent of the first $10,000 of an accepted offer and 5% of the remaining balance. For example, for a $500,000 accepted offer, the first overbidding amount would be $525,500 (10% of $10,000 + 5% of $490,000 + $500,000 = $525,500). Information about attending the confirmation hearing to bid, how much to make out the cashier’s check, to whom to make it out and how to be preapproved to attend Zoom hearings may usually be obtained by reaching out to the Seller’s agent directly.

Yes. We take pride in easing your burden. Often Probate and Trust real estate sales come on the heels of great loss. Someone you love has recently passed, leaving you with the gift of a tremendous asset, but the burden of paying taxes, maintaining it, selling it, and learning Probate and/or Trust legal requirements for the first time. It can be and often is extremely overwhelming. Most clients, just want their money as quick and painlessly as possible. We will do all that we can to work with your Probate Attorney (or refer one if you do not have one), ensure the Probate Referee or Appraiser appraise the property accurately, work with escrow to make sure it has all the legal documents it needs, market, stage and sell your property quickly and hold your hand, literally if needed, throughout the process.