Selling a House in Probate?
Watch us explain the probate process in our short videos below.
“I inherited a small property, does it have to go through probate?”
Any inheritance (estate) that is in California has to go through a mandated process known as Probate if the Assets are valued at over $150,000 (2017). There are exceptions such as a surviving spouse being the beneficiary.
What property is considered a Probate Asset?
All assets owned solely by the deceased are generally considered probate assets. If a property is owned dually with another person in joint tenancy then it is typically not a probate asset. Assets that are willed to a specific beneficiary or that have some other means to determine who receives them may well avoid probate. For surviving spouses there is a way for them to avoid a formal probate (Spousal Property petition).
Who or what is an Executor?
The Administrator or Personal Representative of the deceased is known as an Executor, they are typically named in the will. If there is no surviving named executor, then the closest living relative has highest priority to be the Administrator or Executor of the estate as provided by State Mandated Law. The duties and roles of the Executor are to Inventory property, pay bills and distribute the estate. They are also responsible for filing the final taxes for the deceased.
How does Probate Progress?
The process is started by filing a petition for probate at the Superior Court of the home county of the deceased. The petition is typically prepared by an attorney on behalf of the person who wants to be the executor or administrator of the estate. The petition will give the court details on the potential executor, any heirs, the size of the estate, and the person who passed away. It will also inform the court if a bond will be required. When the Probate process is begun, State Law requires that notices are sent to all heirs, executors, and beneficiaries who are named in the will, this notice will state the Courthouse, date and time of the probate hearing.
Probate Reviews and Hearing
Before the petition is heard before a Judge in court, the preliminary work and examination of the petition will be carried out by a Probate examiner, a staff member of the court. They will review relevant state laws, the information provided and then make a recommendation to the Judge on whether the petition should be approved or denied. If the Potential Executor (petitioner) disagrees with the recommendation then a date will be set and a hearing will be heard before a Judge for the petitioner a chance to have their case heard.
Duties of the Executor (Administrator)
As mentioned above there are many tasks and duties assigned to an Executor that they are responsible for seeing to completion. The final goal is to tidy up and close the deceased’s financial affairs and loose ends. Duties might include Inventorying assets, finding potential heirs, paying ongoing bills of the estate, managing the estate to prevent losses prior to distribution of the assets and the distribution of those assets. There can be many more roles the executor is responsible for.
How can details of an estate be viewed during probate?
While an estate is in probate anyone can go to the court and ask to see the file, this will include the will and all other documents filed with the court.
On average how long can the Probate process take to complete?
In a straightforward case with no unusual problems or anyone contesting the estate the process can be concluded in under a year, usually taking between 8-12 months. This includes a mandated four month Creditors Claims Period. It can also take time from a petition being filed, to it actually being heard due to the court’s workload and crowded court calendars. It may take several weeks for the petition to be heard. If there are problems with contested wills, outstanding taxes or other creditors, this time frame can be greatly extended. If the petition has been approved and there is no one contesting the Executor or the will, the hearing itself can be very brief, just a reading of the petitions listed for the day and a chance for anyone to object to the nomination.
Does it cost anything for a Probate Petition?
Yes. There is a filing fee for the petition paid to the court, that is currently around $435 (2017) in California. However, there is also statuary fees allowed by law to be paid to the executor and the attorney carrying out the petition. These fees are set by law and can get very exorbitant depending on the size of the estate. The fees listed below are for the Attorney and Executor, so if the Executor accepts a fee, the amount will be twice that listed.
|Value of the Estate||Statuary Fee|
Note that these fees are based on the gross value of the estate, not the net. So if a house included in the Estate is valued at $500,000, and it has an outstanding mortgage of $350,000, the fee is payable on $500,000, not the $150,000 that would be realized from a sale.
What can we do while a house is in Probate?
We can still help you sell the house and even get cash from it quickly. We work with several attorneys who can help you through the process and if we buy your house, we will pay the attorney fees. Give us a call on (925) 766-7713 today or complete the form at the top of the page.