Probate

Probate is the legal process of authenticating a will and verifying the deceased person’s intentions are carried out. When there is no will or trust a probate court must decide how to distribute the assets. Often, real estate is the major asset in the estate and it needs to be sold.  Probate sales are unique, with different procedures and rules over traditional sales. It takes an experienced REALTOR® to navigate these waters.

The entire process can take up to a year, and sometimes more.  A home can be listed for sale once the court issued the Letters of Administration; however, proceeds from the sale will be placed into a trust account and will only be accessible once the probate is complete.

There are filing fees to open the probate with the court, publishing fees for the notice of death, probate referee fees to appraise all property and other miscellaneous expenses. But the main costs to the estate are the attorney and executor fees which are based on the gross (not net) value of the estate on decedent’s date of death, plus income earned and net gains on the sale of property during the administration of the estate. Below are some selected estates and the fees. This does not include any extraordinary fees that may be requested by either the executor or the attorney.

• On the first $100,000 of the estate, 4%, or $ 4,000;
• On the next $100,000 of the estate, 3%, or $ 3,000;
• On the next $800,000 of the estate, 2%, or $16,000;
• On the next $9,000,000 of the estate, 1%;
• On the next $15,000,000 of the estate, 1/2%;
• All over $25,000,000 to be determined by the court.

You will need to hire a REALTOR®, preferably one who has probate experience, to aid in your sale.  The home can be sold during the probate process, or after.  Real estate commissions in San Diego county are capped at 5%.

The home can be listed for sale once the Letters of Administration have been issued by the court.  This comes roughly 2 months after the probate has been started.

You will need a REALTOR®, or someone licensed to sell real estate, preferably one with probate experience.

Probate sales are unique in several ways over traditional, regular, sales. Special probate forms are used. Real estate commissions are capped at 5% in San Diego county. A court referee may be assigned which means the property will need to be sold within 90% of the appraised value.  Proceeds from the sale will sit in a trust account until the probate is complete.

If you’re the executor of an estate, you can sell real estate held by the deceased — provided that it was not willed to a beneficiary — to help cover this cost.  After the house is sold and the proceeds are applied to the probate cost and estate debts, the probate court splits any remaining profits among the beneficiaries.

A properly setup trust can avoid probate; however, one can still have a trust and probate may be required. A trust attorney can best advise on this.

That depends. A properly setup trust can avoid probate, but sometimes probate is still needed even though a trust is in place. Consult with a trust or estate planning attorney for advice.