Category Archives: Real Estate

Deed Transfers to NON-California Trusts

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We will take care of the deed Transfers to NON-California Trusts if you or your client own real property in California.  We will take care of the proper deed format as well as the preliminary change in ownership (a required state form).  We will charge $500 per California property and that includes obtaining the current vesting deed and doing the Preliminary Change in Ownership form. If you or your client own real estate in California let us help you get it into your trust. We can do deeds for commercial property, vacation homes, timeshares, bear land, farm land, deeds of trust, and any other type of real property interest you can think of!

Let us make it easy for you! Hire us to take care of your deed transfer needs.

Deed Transfers to California Trusts

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A key component of the California estate planning process is to FUND YOUR TRUST.  What does that mean exactly? That means taking an active role in transferring your assets to your trust.  At our office we assist with transferring each asset; bank accounts, stock brokerage accounts, life insurance, bonds, stocks, and the list goes on… oh ya, and REAL ESTATE.  It is crucial to re-title ALL real estate holdings into the trust.

Why do I say ALL real estate holdings?  I say this because many people have a low value parcel of land in Palmdale, or a strip of land next to their parent’s house, or a timeshare. These all should be transferred to your trust to make things easier and cheaper for your loved ones.

Also transferring property held in other states is important. If you own property anywhere in the country make sure it gets transferred to your California trust. We can help facilitate that.  In some states we can do the deeds ourselves and others we hire a deed service.

Let us help you fund your trust!

5 Steps in the foreclosure process in a California Probate

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The foreclosure process is, of course, much longer than just 5 steps. However, for California probate purposes these are the basics. Of course when dealing with a foreclosure in a trust, estate or probate situation you should hire a California lawyer who specializes in this area of law.  The 5 steps are:

Step 1 Notice of Default (“NOD”) is Recorded with the County (day 1);

Step 2 Reinstatement of Loan can occur any time up to and including 5 business days before the sale;

Step 3 Foreclosure Sale Date Is Set (3 Months, or later, following Notice of Default date);

Step 4 Notice of Trustee Sale is prepared by the bank, published, recorded, mailed and posted;

Step 5 Foreclosure Sale Date (Sold at Public Auction on the Court house steps, generally 3-4 weeks following Notice of Sale; by law this may be as few as 111 days).

Notice there is nothing about about death, filing for probate, letters testamentary issuing or anything else like that.  Why?  This is because probate does NOT stop foreclosure!

If you are dealing with an insolvent estate or upside down in a probate situation please contact me at once as time is likely of the essence.  In some cases we can put money in your pocket even if the house is upside down!

-John

10 Things a Probate Lawyer wants in a Real Property Sale

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10 THINGS A PROBATE LAWYER LIKES TO SEE IN A REAL PROPERTY SALE

1)        Market Analysis Report in writing

2)        Probate Listing Agreement

3)        Marketing Plan

4)        Keep detailed log of all marketing and offers

5)        Use of Probate Sales forms

6)        Fax/email agreement once fully signed

7)        Title company information to attorney

8)        At least 20 (or 45 – trust) days for escrow unless discussed beforehand

9)        Final closing statement

10)      Plus, everything you would do for a “regular” client!

Parent to Child Exemption Form

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Upon death or any other transfer of real estate in California you need to evaluate if a PT-58 form is required. It is the document which tells the county assessor that a transfer has been made, of real property, between a parent and a child.  This will preserve the parent’s property tax assessment or basis.  This is also known as the “prop 13 basis.”  Likewise if a transfer is between a grandparent and a grandchild a similar exclusion is available in some cases.  This should be done within 3 years of the transfer and always done BEFORE any sale or transfer to an outsider. This is imperative!  Failure to file this with the county assessor in the appropriate county will create unnecessary property taxes now and into the future.

The rules allow the transfer of the personal residence AND $1,000,000 of other property at it’s assessed value.

There can certainly be value in hiring a professional to assist with this as it is easy to mess up!

Contact me to discus your parent-child and grandparent-grandchild transfers!

-John

Short Sales in California Probates

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What a hot topic right now!  Sure short sales or “upside down houses” or houses without equity are hot topics for a large number of people. However, when dealing with short sales after death there are different rules, different procedures and different outcomes. In fact, the probate code has special rules that can make a short sale profitable to the Administrator of the Executor of the estate if done exactly right.  That is California Probate Code 10360 which I will paste in full down below.

If you know all the rules you can come out ahead! I have helped Administrators and Executor’s of California probate estates walk away with $15,000, and more, in their pocket! That is, their loved one died with an upside down house and nothing else but I have been able to put money into their pocket and it’s totally legal!

Contact me and let’s discuss your California probate and how we can “short sell” your loved one’s house. I can do this in any county in California. Contact me to see if your case has good facts to use this procedure.

-John

 

 

CALIFORNIA CODES PROBATE CODE SECTION 10360-10363
10360.  As used in this article:
   (a) “Amount secured by the lien” includes interest and any costs
and charges secured by the lien.
   (b) “Encumbered property” means real or personal property that is
subject to a lien for a secured debt which is a valid claim against
the estate and which has been allowed or approved.
   (c) “Lien” means a mortgage, deed of trust, or other lien.

 

10361.  (a) If encumbered property is sold, the purchase money shall
be applied in the following order:
   (1) Expenses of administration which are reasonably related to the
administration of the property sold as provided in paragraph (1) of
subdivision (a) of Section 11420.
   (2) The payment of the expenses of the sale.
   (3) The payment and satisfaction of the amount secured by the lien
on the property sold if payment and satisfaction of the lien is
required under the terms of the sale.
   (4) Application in the course of administration.
   (b) The application of the purchase money, after the payment of
those expenses set forth in paragraphs (1) and (2) of subdivision
(a), to the payment and satisfaction of the amount secured by the
lien on the property sold shall be made without delay; and, subject
to Section 10362, the property sold remains subject to the lien until
the purchase money has been actually so applied.

 

10361.5.  The personal representative or any interested party may,
at any time before payment is made to satisfy all liens on the
encumbered property sold, petition for an order determining the
amount of expenses of administration that are reasonably related to
the administration of that encumbered property as provided in
paragraph (1) of subdivision (a) of Section 11420. The petition may
be heard as part of a petition for confirmation of sale of personal
or real property as provided in Section 10260 or 10308, respectively
or may be heard separately. If the petition is presented as part of a
petition for confirmation of sale of real or personal property, the
notice of hearing otherwise required by this code for a petition for
confirmation of sale shall be given in addition to the notice
requirements under Section 10361.6.

 

10361.6.  (a) At least 30 days prior to the day of the hearing, the
petitioner shall cause notice of the hearing and a copy of the
petition to be served in the manner provided in Chapter 4 (commencing
with Section 413.10) of Title 5 of Part 3 of the Code of Civil
Procedure on all of the following persons:
   (1) The personal representative, if the personal representative is
not the petitioner.
   (2) The holder of any mortgage or other lien secured by the
property that is sold.
   (3) All agents or brokers entitled to compensation from the
proceeds of the property that is sold.
   (b) Except for those persons given notice pursuant to subdivision
(a), notice of the hearing, together with a copy of the petition,
shall be given as provided in Section 1220 to all of the following
persons:
   (1) Each person listed in Section 1220.
   (2) Each known heir whose interest in the estate would be affected
by the petition.
   (3) Each known devisee whose interest in the estate would be
affected by the petition.
   (4) The Attorney General, at the office of the Attorney General in
Sacramento, if any portion of the estate is to escheat to the state
and its interest in the estate would be affected by the petition.
   (c) The court may not shorten the time for giving the notice of
hearing under this section.

 

10362.  (a) If encumbered property is sold, the purchase money, or
so much of the purchase money as is sufficient to pay the amount
secured by the lien on the property sold and the expenses of the
sale, may be paid to the clerk of the court. Upon the payment being
so made, the lien on the property sold ceases.
   (b) The clerk of court without delay shall use the money paid to
the clerk under this section to pay the expenses of the sale and to
pay and satisfy the amount secured by the lien on the property sold.
The clerk shall at once return the surplus, if any, to the personal
representative unless the court, for good cause shown and after
notice to the personal representative, otherwise orders.

 

10363.  (a) At a sale of real or personal property subject to a
lien, the lienholder may become the purchaser of the property, even
though no claim for the amount secured by the lien on the property
sold has been, or could have been, filed, allowed, or approved.
   (b) Unless the property is sold subject to the lien:
   (1) If the lienholder becomes the purchaser of the property and
the amount secured by the lien on the property is a valid claim
against the estate and has been allowed or approved, the receipt of
the lienholder for the amount due the lienholder from the proceeds of
the sale is a payment pro tanto.
   (2) If the lienholder becomes the purchaser of the property and no
claim for the amount secured by the lien on the property has been
filed, allowed, or approved, the court may at the hearing on the
petition for confirmation of the sale examine into the validity and
enforceability of the lien and the amount secured by the lien, and
the court may authorize the personal representative to accept the
receipt of the lienholder for the amount secured by the lien as
payment pro tanto.
   (3) If the lienholder becomes the purchaser of the property and
the amount for which the property is purchased is insufficient to pay
the expenses of the sale and to discharge the lienholder’s lien,
whether or not a claim has been filed, allowed, or approved, the
lienholder shall pay to the clerk of the court an amount sufficient
to cover the expenses of the sale.
   (c) Nothing permitted under this section shall be deemed to be an
allowance or approval of a claim based upon the lien or the amount
secured by the lien.

 

 

California Probate Real Estate Sales

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This is an updated version of an article I wrote for the Sacramento Realtor, real estate magazine, a few years ago. I updated it for posting here today. Though it’s written for the real estate professional I think the key ingredients should make sense to anybody dealing with a real property sale in a California probate.  Let me know of any questions you have.  -John

 

As a probate and trust administration attorney I am often asked how soon after a loved one’s death can a house be sold.  Of course, this is a loaded question as I do not have an answer until I know if the person who died (the “decedent”) had a living trust or not.   Quite often the decedent did not have a living trust.  This means the “P” word… PROBATE!   To many the P word is evil and conjures up images of an over-reaching government taking family assets.  In fact, it’s typically not that at all.  Rather, probate is the court administered process of gathering and distributing a deceased persons estate to those entitled to receive the decedent’s assets after first determining what taxes and liabilities need to be paid. While it does take a minimum of 7 months to complete a probate, business can be conducted during those 7 months.    I should add there are exceptions to a full probate for property worth less than $100,000 and that limit is going up to $150,000 January 1, 2012 due to Assembly Bill 1305.  This article focuses on full probate though.

 

Officially a house can not be sold, or even listed for sale, until a person has been named Personal Representative by the probate Judge.  It should be noted that filing a probate does not stop a foreclosure sale.  Absent a Special Administrator being appointed, officially no action can be taken for at least 6 weeks after death (that is, until that first Court date).  Thus, the most important thing is that the family try to come to an agreement on who should serve as Personal Representative and a petition should be filed with the Court as soon as possible.  The longer the family waits to file their probate petition means that much longer until they can sell the house.  In today’s real estate market time is generally not on the side of a seller who delays in getting their house onto the market!  Generally my advice to my clients to is sell fast and avoid the falling market.

 

Once a person is named PR they can sign a listing agreement with the Realtor of their choice as long as the PR has petitioned, and been approved, for administration with full authority under the Independent Administration of Estates Act (IAEA).   Having full IAEA authority is very important as it allows an administrator to sign a listing agreement and complete the sale of a house without Court approval in most cases.  Let me re-type those words in BOLD, SIGN A LISTING AGREEMENT AND COMPLETE THE SALE OF A HOUSE WITHOUT COURT APPROVAL.  That’s right, Court approval is often not required to sell a house in probate!

 

In these types of cases, selling the house will be very similar to a standard real estate transaction.  One difference is that do I advise that you use the probate sales form (CAR form #PPA).  Also, your client does not have to fill out all the disclosures that they normally would since it’s presumed they do not know anything about the house because they often never lived in the house.  Additionally, the Realtor’s commission should be exactly the same as in a non-probate sale; typically 6% in my experience.  Instead of a specific Court order, the title company will require that a Notice of Proposed Action that includes certain terms of the sale has been sent to all interested parties.  This should be mailed at least 15 days before the planned close of escrow and specifies that the interested parties have 15 days to object to the proposed sale.  The probate attorney will take care of this but you need to notify them once the property is in contract so that they know to send out the notice and get the necessary documentation to the title company so that the sale can close in a timely fashion.

 

Ok, what if your client does not have full IAEA authority, then what?  You have heard of a situation where the probate Judge auctions off real estate and guess what; this really does happen!  The situations that would cause the Court auction to happen are as follows.  If an interested party objects to the Notice of Proposed Action then the sale reverts to a Court auction.  Also, if the PR does not have full IAEA authority then a Court auction is usually required. A Court auction will generally be held about 6 weeks after filing the petition to confirm the sale with the Court.  This petition should be filed as soon as possible after entering into a sales contract.  Among other things it requires a showing of the marketing efforts made in selling the house so keep accurate records!  Also, when the Court auction situation arises a house does need to be sold for at least 90% of the probate referee’s appraised value as of the date of death. This can be difficult!  If it has been one year since death then the house should be re-appraised by the probate referee, at time of sale, and thus the 90% rule would be easier to comply with.  The bottom line, however, is that I try to avoid probate Court auctions whenever possible.

 

There are many other issues that arise in a probate.  I will address some of them in a later article. However, should you have any questions related to a California probate please call me to discuss them.

 

In conclusion, a house may be sold during a probate.  Though there are specific rules to follow and they are often not that cumbersome.  In a down real estate market it is very important to get a person appointed as the personal representative of the estate as soon as possible so that they can enter into a listing agreement and ultimately a sales agreement.  Make sure that your client has a competent probate attorney to guide them through the process to avoid delays!  It is my advice that your client should hire someone who has been deemed a Certified Expert in Probate, Trust and Estate Planning Law by the State Bar of California Board of Legal Specialization as we tend to have a deeper knowledge of all the ins and outs of a California probate real estate sale.

Transferring Property to Trust AFTER Death

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I have written before about Heggstad petitions.  In particular you can see my formal article, with case background information, on my website at http://www.californiaprobate.info/probate/petition-related-to-trusts

As stated there a Heggstad petition is a way to get property (real and personal) into your California trust AFTER death.  It can be used for almost any assets: bank accounts, stock accounts, stock certificates, bonds, partnership interests, LLC interests, timeshares, houses, real estate, real property, condos, townhouses and more.  I should clarify that for deeded assets (like the last 6 named above) the property has to be in California.  Getting another state to honor a California Heggstad order may be tough. It’s possible it can be done but there are probably better options.

Today I want to focus on Heggstad petitions and what kind of intent you should look for. It’s different depending on if the asset is real property or personal property.  The standards for real property are stricter. That is, you need to convince the probate Court Judge that the decedent had the INTENT to have the asset in their trust when they died.  That is they owned an asset and for whatever reason it wasn’t properly titled in their trust when they died.

With real property it needs to specific written intent.  In the actual Estate of Heggstad case the real property was listed on the attached schedule of assets and that schedule was signed. I have seen others where the property is specifically listed in the document, by address or other description, and that is treated as being good intent.  The key with real estate is specific mention of the property in the trust or in another document that connects to the trust in some way.  I have a case right now where my clients tell me mom told her Realtor she wanted the property in the trust. The odds are significant that the Court would not approve a Heggstad based on that oral evidence. Needs to be in writing!

With personal property the rules are looser.  It can be listed on the schedule of assets.  In most Courts it can also be shown by a general statement of intent that all assets are to be in the trust.  In my estate planning practice we generally prepare a “general transfer” document to help with this problem.  It could be a letter to the stockbroker asking them to put the account into the trust. Basically there are a lot of ways to show the intent.

The key, beit real or personal property, is convincing the Court of the decedent’s intent.  The more information you can provide the better.  You do not want to just state that the decedent intended it to be in the trust. You want to show WHY the decedent intended it to be in trust.  Show what actions they took to demonstrate their desire to put that asset in the trust.  I like to provide written declarations by people with knowledge, copies of documents, and basically anything I can add that might help push the Judge over the edge to agree with our request.  The Judge generally wants to agree with you because they don’t want to force you into a probate but they also want to make sure they are complying with the law.

A Heggstad petition might sound simple but it is a complex trust petition. It should be handled by someone who does them a lot and is familiar with the variables and possibilities.

Call or email me to discuss YOUR Heggstad petition!  -John

Transferring Real Estate to Your Trust

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In the past week I have blogged generally about the need to transfer your assets into your trust and specifically the need to transfer often forgotten assets like timeshares to your trust. The question is HOW?  How does one “transfer” an asset into their California trust?  Today we are going to focus on real estate transfers. In the coming days I will talk about other transfers to your trust.

Typically when you sign your trust with your attorney one of the documents they will you sign is a deed. Different attorneys use different types of deeds but in California it will typically be a “grant deed” or a “quitclaim deed.”  Though two lawyers could probably bore you with details of how they are different for our purposes it really does not matter which deed you use. The key is it’s a deed. For clarification this is NOT a “deed of trust.”  A deed of trust is related to the mortgage and typically mortgages are not involved with your trust.

So your attorney will prepare a deed. The deed will transfer title from the current ownership to the trust ownership. The attorney will obtain your current vesting deed to see how title is held exactly and then prepare a deed from that name to the name of the trustee as trustee of a trust. Let’s say that John Johnson signs a new trust called the Johnson Trust.  A deed would look something like this:

“John Johnson, A Single Man deeds all right, title and interest in that certain real property, legally described below, located at 1234 Main Street, Sacramento, CA to:

John Johnson, Trustee of the Johnson Trust, Under Trust Agreement Dated September 23, 2011.”

Below that, or on an attached page, would be the complete legal description. Accuracy is extremely important with deeds.  In particular look for:

- Current vesting is copied exactly. In this case current vesting is “John Johnson, a Single Man” and thus those exact words should be used on the new deed to the trust. Look out for middle names, middle initials, etc… and copy exactly.

- The name of the trust should be identical to the actual trust name.  Years from now when John’s kids are trying to sell this property a title company will ask for documentation to prove the trust exists.  The trust name on the deed should match the trust name on the trust document exactly including the date.

- Also the legal description should be copied exactly. Check capital letters, punctuation, strange symbols, etc… and get them all exactly right.

Also, when transferring real estate to your California trust there are often cover sheets. In California the counties all require the use of a Preliminary Change of Ownership Statement. This accompanies the recording of a deed and is sent to the county assessor to make sure there is no change in property tax (there typically would not be in a transfer to a revocable trust). Your attorney will prepare that and have you sign it when you sign your deed.

Related to this it is good practice to advise your homeowner’s insurance of your trust. It should not affect your rates but good for them to be aware that your house is now titled in your trust.

More questions contact me or visit our home page at www.californiaprobate.info

-John

California Probate Code

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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.