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California Probate Code

I have told you before that all answers are in the probate code, right!?  Most probate cases allow for simple sales of real estate that do not require Court confirmation before the sale. However, in some cases Court confirmation is required before the sale. What do you do then?  Well, I have a case right now going to auction at the Sacramento Probate Courthouse. Did you know they actually sell real estate sometimes just an old cattle auction!? It’s pretty funny to hear the Judge saying, “going once, going twice… SOLD!” However, they really do that. On rare occasions there are multiple bidders even. Sort of fun when somebody in the back row stands up, out of the blue, to make a bid.

 

California PROBATE CODE
SECTION 10300-10316

10300.  (a) Except as provided in Sections 10301 to 10303,

inclusive, and in Section 10503, real property of the estate may be

sold only after notice of sale has been published pursuant to Section

6063a of the Government Code (1) in a newspaper published in the

county in which the real property or some portion thereof is located

or (2) if there is no such newspaper, in such newspaper as the court

or judge may direct.

(b) The publication of notice of sale shall be completed before:

(1) In the case of a private sale, the day specified in the notice

as the day on or after which the sale is to be made.

(2) In the case of a public auction sale, the day of the auction.

 

10301.  (a) If it appears from the inventory and appraisal that the

value of the real property to be sold does not exceed five thousand

dollars ($5,000), the personal representative may in his or her

discretion dispense with publication of notice of sale and, in lieu

of publication, post the notice of sale at the courthouse of the

county in which the real property or some portion thereof is located.

(b) Except as provided in Section 10302, posting pursuant to this

section shall be for at least 15 days before:

(1) In the case of a private sale, the day specified in the notice

of sale as the day on or after which the sale is to be made.

(2) In the case of a public auction sale, the day of the auction.

 

10302.  (a) If it is shown that it will be to the advantage of the

estate, the court or judge may by order shorten the time of notice of

sale to not less than five days.

(b) Except as provided in subdivision (c), if the court or judge

makes an order under subdivision (a), notice of sale shall be

published as provided in Section 10300 except that the publication

shall be pursuant to Section 6061 of the Government Code.

(c) In a case described in Section 10301, if the court makes an

order under subdivision (a), notice of sale shall be posted as

provided in Section 10301 except that the notice of sale shall be

posted at least five days before the sale instead of 15 days as

required by Section 10301.

 

10303.  Real property may be sold with or without notice, as the

personal representative may determine, in either of the following

cases:

(a) Where the property is directed by the will to be sold.

(b) Where authority is given in the will to sell the property.

 

10304.  (a) The notice of sale given pursuant to this article shall

state all of the following:

(1) Whether the sale is to be a private sale or a public auction

sale.

(2) In the case of a private sale, the place at which bids or

offers will be received and a day on or after which the sale will be

made or, in the case of a public auction sale, the time and place of

sale.

(3) The street address or other common designation or, if none, a

legal description of the real property to be sold.

(b) The notice of sale may state other matters in addition to

those required by subdivision (a), including terms and conditions of

sale.

 

10305.  (a) A sale of real property at public auction shall be made

in the county in which the property is located. If the property is

located in two or more counties, it may be sold in any one of them.

(b) A sale of real property at public auction shall be made

between 9 a.m. and 9 p.m., and the sale shall be made on the day

specified in the notice of sale unless the sale is postponed.

(c) The personal representative may postpone a public auction sale

of real property from time to time if all of the following

conditions are satisfied:

(1) The personal representative believes that the postponement is

to the advantage of the estate.

(2) Notice of the postponement is given by public declaration at

the time and place appointed for the sale.

(3) The postponement, together with previous postponements of sale

of the property, does not exceed three months in all.

 

10306.  (a) A private sale of real property may not be made before

the day stated in the notice of sale as the day on or after which the

sale will be made, nor later than one year after that day.

(b) In the case of a private sale of real property, the bids or

offers shall be in writing and shall be left at the place designated

in the notice of sale, or be delivered to the personal representative

personally or to the person specified in the notice of sale, at any

time after the first publication or posting of notice of sale and

before the making of the sale.

 

10307.  Whether a sale of real property is private or at public

auction, bids shall substantially comply with any terms specified in

the notice of sale.

 

10308.  (a) Except as provided in Section 10503, all sales of real

property shall be reported to and be confirmed by the court before

title to the property passes to the purchaser, whether the sale is a

private sale or a public auction sale and notwithstanding that the

property is directed by the will to be sold or authority is given in

the will to sell the property.

(b) If the personal representative fails to file the report and a

petition for confirmation of the sale within 30 days after the sale,

the purchaser at the sale may file the report and petition for

confirmation of the sale.

(c) Notice of the hearing on the petition for confirmation filed

under subdivision (a) or (b) shall be given as provided in Section

1220 to the persons designated by that section and to the purchasers

named in the petition, and posted as provided in Section 1230.

 

10309.  (a) Except as provided in Section 10207, no sale of real

property at private sale shall be confirmed by the court unless all

of the following conditions are satisfied:

(1) The real property has been appraised within one year prior to

the date of the confirmation hearing.

(2) The valuation date used in the appraisal described in

paragraph (1) is within one year prior to the date of the

confirmation hearing.

(3) The sum offered for the property is at least 90 percent of the

appraised value of the property as determined by the appraisal

described in paragraph (1).

(b) An appraisal of the property may be had at any time before the

sale or the confirmation of sale in any of the following cases:

(1) Where the property has not been previously appraised.

(2) Where the property has not been appraised within one year

before the date of the confirmation hearing.

(3) Where the valuation date used in the latest appraisal is more

than one year before the date of the confirmation hearing.

(4) Where the court is satisfied that the latest appraisal is too

high or too low.

(c) A new appraisal made pursuant to subdivision (b) need not be

made by a probate referee if the original appraisal of the property

was made by a person other than a probate referee. If the original

appraisal of the property was made by a probate referee, the new

appraisal may be made by the probate referee who made the original

appraisal without further order of the court or further request for

the appointment of a new probate referee. If appraisal by a probate

referee is required, a new probate referee shall be appointed, using

the same procedure as for the appointment of an original referee, to

make the new appraisal if the original probate referee is dead, has

been removed, or is otherwise unable to act, or if there is other

reason to appoint another probate referee.

 

10310.  (a) Except as provided in this subdivision, at the hearing

on the petition for confirmation of the sale of the real property,

the court shall examine into the necessity for the sale or the

advantage to the estate and the benefit to the interested persons in

making the sale. If the decedent’s will authorizes or directs the

property to be sold, there need be no showing of the necessity of the

sale or the advantage to the estate and benefit to the interested

persons in making the sale.

(b) The court shall examine into the efforts of the personal

representative to obtain the highest and best price for the property

reasonably attainable.

(c) Any interested person may file written objections to the

confirmation of the sale at or before the hearing and may testify and

produce witnesses in support of the objections.

 

10311.  (a) Subject to subdivisions (b), (c), (d), and (e), and

except as provided in Section 10207, if a written offer to purchase

the real property is made to the court at the hearing on the petition

for confirmation of the sale, the court shall accept the offer and

confirm the sale to the offeror if all of the following conditions

are satisfied:

(1) The offer is for an amount at least 10 percent more on the

first ten thousand dollars ($10,000) of the original bid and 5

percent more on the amount of the original bid in excess of ten

thousand dollars ($10,000).

(2) The offer is made by a responsible person.

(3) The offer complies with all provisions of law.

(b) Subject to subdivisions (c), (d), and (e), if there is more

than one offer that satisfies the requirements of subdivision (a),

the court shall accept the highest such offer and confirm the sale to

the person making that offer.

(c) The court may, in its discretion, decline to accept the offer

that satisfies the requirements of subdivisions (a) and (b); and, in

such case, the court shall order a new sale.

(d) If the sale returned for confirmation is on credit and the

higher offer is for cash or on credit, whether on the same or

different credit terms, or the sale returned for confirmation is for

cash and the higher offer is on credit, the court may not consider

the higher offer unless the personal representative informs the court

in person or by counsel prior to confirmation of sale that the

higher offer is acceptable.

(e) For the purpose of this section, the amount of the original

bid and any higher offer shall be determined by the court without

regard to any of the following:

(1) Any commission on the amount of the bid to which an agent or

broker may be entitled under a contract with the personal

representative.

(2) Any condition of the bid that a certain amount of the bid be

paid to an agent or broker by the personal representative.

 

10312.  If notice of the sale was required, before an order is made

confirming the sale it shall be proved to the satisfaction of the

court that notice of the sale was given as required by this article,

and the order of confirmation shall show that the proof was made.

 

10313.  (a) The court shall make an order confirming the sale to the

person making the highest offer that satisfies the requirements of

this article, and directing conveyances or assignments or both to be

executed, if it appears to the court that all of the following

requirements are satisfied:

(1) Either the sale was authorized or directed to be made by the

decedent’s will or good reason existed for the sale.

(2) If notice of the sale was required, the proof required by

Section 10312 has been made.

(3) The sale was legally made and fairly conducted.

(4) The amount for which the sale is to be confirmed is not

disproportionate to the value of the property.

(5) In the case of a private sale, the sale complied with the

requirements of Section 10309.

(6) If the sale is confirmed to the original bidder, it does not

appear that a sum exceeding the original bid by at least 10 percent

more on the first ten thousand dollars ($10,000) of the original bid

and 5 percent more on the amount of the original bid in excess of ten

thousand dollars ($10,000), exclusive of the expenses of a new sale,

may be obtained.

(b)  Upon its own motion or upon the request of the personal

representative, the agent or broker, or any other interested person,

made at the time of the confirmation hearing or at another time, the

court shall fix the compensation of the agent or broker as provided

in Article 3 (commencing with Section 10160).

(c) If it appears to the court that the requirements of

subdivision (a) are not satisfied, the court shall vacate the sale

and order a new sale.

(d) If the court orders a new sale under subdivision (c) of this

section or under subdivision (c) of Section 10311, notice of the new

sale shall be given and the new sale shall in all respects be

conducted as if no previous sale had taken place.

 

10314.  (a) Except as provided in subdivision (b), upon confirmation

of the sale, the personal representative shall execute a conveyance

to the purchaser which shall refer to the order confirming the sale

and directing the conveyance to be executed. A certified copy of the

order shall be recorded in the office of the recorder of the county

in which the real property or some portion thereof is located.

(b) Upon confirmation of a sale of the decedent’s interest under a

contract for the purchase of real property by the decedent and after

the purchaser has given a bond if one is required under Section

10206, the personal representative shall execute an assignment of the

contract to the purchaser.

(c) A conveyance made in compliance with the court order

confirming the sale and directing the conveyance to be executed vests

in the purchaser both of the following:

(1) All the right, title, and interest which the decedent had in

the property at the time of the decedent’s death.

(2) Any other or additional right, title, or interest in the

property acquired by the estate of the decedent, by operation of law

or otherwise, prior to the sale.

(d) An assignment made in compliance with the court order

confirming the sale of the decedent’s interest under a contract for

the purchase of real property by the decedent vests in the purchaser

all the right, title, and interest of the estate, or of the persons

entitled to the interest of the decedent, at the time of sale in the

property assigned. The purchaser of the decedent’s interest under the

contract for the purchase of the real property by the decedent has

the same rights and remedies against the vendor of the property as

the decedent would have had if living.

 

 

 

10315.  (a) If a sale is made on credit, the personal representative

shall take the note of the purchaser for the unpaid portion of the

purchase money, with a mortgage or deed of trust on the property to

secure payment of the note. The mortgage or deed of trust shall be

subject only to encumbrances existing at the date of sale and such

other encumbrances as the court may approve.

(b) Where property sold by the personal representative for part

cash and part deferred payments consists of an undivided interest in

real property or any other interest therein less than the entire

ownership and the owner or owners of the remaining interests therein

join in the sale, the note and deed of trust or mortgage may be made

to the personal representative and such others having an interest in

the property. The interest of the personal representative in the note

and deed of trust or mortgage shall be in the same interest and in

the same proportions as the estate’s interest in the property prior

to the sale.

10316.  No omission, error, or irregularity in the proceedings under

this article shall impair or invalidate the proceedings or the sale

pursuant to an order made under this article.