The Real Estate Probate Process
This is a general summary of the Probate process for informational purposes and should not be construed as legal advice. To find out more information, contact a Probate Attorney, or contact Fiona and Colin so that we can provide a reference list.
What is Probate? Probate is the entire legal process of transferring the property previously owned by a deceased person, resolving all claims, and distributing the deceased person's estate under a will, including real property.
1. Appointment of Executor (or Administrator)
The decedent (deceased person) appoints a person in their will as the Executor. If that person is willing to be responsible for managing the property throughout the entire Probate process, then they will be appointed as the Executor. If the person is unwilling to be responsible for managing the property, or if there is no will, or if the will does not appoint an Executor, the courts will name an Executor, who can be an heir, someone recommended by an heir, or a Public Administrator.
2. Probate Referee
A property valuation is provided by the Probate Referee.
3. Sale of Property
Fiona and Colin Theseira market the property on the MLS and are responsible for the property advertising campaign. This may include open houses, signage, print advertising, networking, digital online marketing, and solicitation of other REALTORS®. Fiona and Colin Theseira are the award-winning marketing consultants and REALTORs® who will create a marketing strategy for advertising the property.
4. Accepted Offers
For offers to be accepted, they must be 90% or more of the Probate Referee's appraisal price. Fiona and Colin Theseira will work with the Attorney or Executor to determine the best offer and negotiate terms. If the Executor is granted full independent powers by the probate court under the Independent Administration of Estates Act (IAEA), a Notice of Proposed Action is mailed to all heirs, who have 15 days for review and objection.
The sale can proceed without a court confirmation hearing only if there are no objections.
If the Executor is not granted full independent powers, or if an heir doesn’t agree to the sale and submits the objection, then it is necessary to take additional steps. Property sale advertisement has to be published in a generally distributed local newspaper, except if the will specifically does not mandate such action.
5. Court Confirmation
Your attorney applies for a court date for a confirmation hearing with an accepted offer. This process usually lasts between 30 to 45 days from the application date. Petition copy and all sale details are mailed to all parties involved.
6. Confirmation Hearing & Overbidding
During the Court Confirmation hearing, new buyers may overbid the property. The lowest overbid is 10% of the first $10,000.00 plus 5% of the balance up to the amount of the accepted offer. A cashier's check for at least 10% of the minimum overbid price must be shown to the court in order to make an overbid. At the hearing, the check is given to the Executor, a contract is signed, and escrow is opened. The escrow process usually lasts from 30 to 45 days.
Original offer: $300,000
+10% x $10,000 = $1,000
+5% x $290,000 = $14,500
First overbid minimum: $315,500
x 10% = $31,550 amount due at hearing with cashier's check
For a Market Analysis Valuation on your property, call/text Fiona and Colin Theseira at 858-863-6211.
Fiona is a Certified Probate Real Estate Specialist and holds the Professional Fiduciary Management certificate.