What is Considered "Probate Property" And Thus Affected by Probate Court Rules? Probate property is property that is currently being managed via a Court action in the Probate Court. What this usually means is a Conservatorship Estate (maintenance of an elderly person's assets for their care), Guardianship Estate (maintenance of a minor's assets for care/saving until age eighteen), or Decedent/Probate Estate (maintenance of a deceased person's assets eventually with the goal to distribute to the heirs/beneficiaries of the deceased person). At some point, one person has asked the Court to be allowed to manage another person's (deceased, mentally incapacitated, or minor) property and was granted that power.
Why Do Some Probate Real Property Sales Require a Court Confirmation Hearing, While Others Do Not? A Court hearing confirming the sale of real property must occur in two different situations: (1) All Conservatorship and Guardianship proceedings (i.e. when the real property is owned by a mentally incapacitated individual or a minor); and (2) in Decedent Estate Administrations (i.e. deceased person's real property) but only where the Executor/Administrator is granted authority to act with Limited Authority under the Independent Administration of Estates Act ("IAEA").
The above leaves Decedent Estate Administration's (Probate) where the Executor/Administrator is granted authority to act with Full Authority. In this situation, the Executor/Administrator only needs to provide a form entitled, "Notice of Proposed Action" to each of the beneficiaries, stating the terms of the proposed sale. After fifteen days, if no beneficiary objects, or if all beneficiaries approve of the sale ahead of time, then the property may be sold. However, if the beneficiaries object, then a Court Confirmation hearing is required. Even if a Court Confirmation hearing is not required, some Attorneys will still advise their clients to pursue Court confirmation if the market is such that substantial overbidding may occur at the hearing.
How Do I Know Whether in a Decedent/Probate Estate the Executor/Administrator Was Granted Full or Limited Authority? The easiest answer to this question is to ask the Executor or Administrator's Attorney (there should be an Attorney involved since probate matters are often too difficult to handle without an attorney's assistance, let alone a Probate matter involving complications related to a real property sale).
What is the Maximum Commission That a Realtor Involved in a Sale of Probate Property May Receive in a Probate Sale? The California Probate Code does not set a maximum commission, leaving the particular counties to decide on their own what they will allow. For example, Los Angeles County allows five percent (5%) while Orange County allows six percent (6%). You can always ask the Executor or Administrator's Attorney for your own particular County!
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