Q&A with a Trust & Probate Attorney on Bay Area Real Estate
As a real estate agent specializing in trust and probate transactions, I am frequently asked questions from clients about the process. For this article, I asked Phillip Campbell, a trust & probate attorney of Campbell Green LLP, common questions my clients ask.
Who has the authority to sign the listing agreement, accept offers, and execute the final sale documents of a decedent's house?
The answer depends on whether the decedent had a revocable living trust with a 'pour-over' will, a simple will without a trust, or no trust and no will. If the decedent had a revocable living trust the successor trustee has the power to sell the decedent's house. The successor trustee named in the trust is responsible for administering the terms of the trust, which includes the authority to sell the house. Typically this can be done without going to Court. If the decedent left a simple will without a trust or died without a will, then the person nominated as executor in the will, or if no will any close relative or interested person, must petition the Court to open a Probate Administration Case and be appointed by the Court as Personal Representative of the Estate. The appointed Personal Representative has the authority to sell the house subject to the Probate Laws and Rules of the Court. Whether the decedent died with a trust, a simple will, or without a will it is recommended that you seek the help of a trust and estate attorney.
What is the difference between the Personal Representative having 'full' or 'limited' authority?
Under the California Independent Administration of Estates Act the Court Appointed Personal Representative of the Estate is designated as having 'full' or 'limited authority'. Limited authority requires that the Personal Representative get the permission of the Court sign a listing agreement or sell the house. This requires several court hearings through out the process of selling the house. Full authority allows the Personal Representative to perform all the duties of selling the house without advanced permission of the Court, but rather the personal Representative must provide all the heirs and devisees with written notice of the actions proposed to be taken and an opportunity for them to object to the proposal.
Can You Sell a Home Before Probate Fully Finishes in California?
Yes, Selling the decedent's home is part of the probate process in California. The Court Appointed Personal Representative must report back to the Court details about the sale of the home, including reporting the final financial information about the sale.
What is the new law about selling a property valued under $750,000?
The State of California recently updated an old law that allowed families to transfer a real property to the decedent's heirs or devisees without a full probate to include properties that are valued less than $750,000. When a decedent dies with a simple will (no trust) or without a will, the heirs or devisees may go to Court and file a Petition to Determine Succession to Real Property rather than a full Probate. At the end of this simplified process the heirs or devisees will be the owners of the home and then they sell it as a group. Then all of the new owners (for example all of the decedent's children) have to agree and sign on all steps of the process. Everyone must sign the listing agreement, the sales contract, and the closing paperwork.
About the Attorney
Q&A courtesy of:
Phillip Campbell
CAMPBELL GREEN LLP
1970 Broadway, Suite 625
Oakland CA 94612
(510) 832-0742
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