San Diego Trust & Probate Real Estate Agent

Probate is the legal process through which a deceased person's assets are inventoried, debts are settled, and the remaining property is distributed to heirs or beneficiaries. Think about when you sell a car - you sign the title over to the new owner, right? Well, the same thing happens when you sell a house. The homeowner signs the grant deed over to the buyer, money changes hands, and the deed gets recorded with the County. But when that homeowner is deceased, and there are no mechanisms in place to transfer the title of the house (like a living trust), we have no one to sign that grant deed. This is where probate is going to come in. Think of probate as a title clearing process because the court is going to assign a person to sign that home’s grant deed on behalf of the estate.

Not all real estate goes through probate. A home held in a living trust, for example, passes directly to the successor trustee without court involvement. Property held in joint tenancy with right of survivorship also bypasses probate, transferring automatically to the surviving owner. The same is true of community property with right of survivorship between spouses, or homes with a RTOD (revocable transfer on death) deed. But when someone dies with real estate held solely in their name with no trust, no co-owner with survivorship rights, and no other title transfer mechanism in place, that property will almost certainly need to go through probate before it can be sold or transferred. This is especially common with older homeowners who never set up a trust, or whose estate planning documents are outdated or incomplete.

In California, probate is overseen by the Superior Court in the county where the deceased lived, even if some or all of the real property is in a different county. So in San Diego, that's the San Diego Superior Court. It’s also important to note that there are some financial limitations for when probate is required. In California, probate is generally required when the total value of the estate exceeds $184,500 (as of 2024). Given San Diego’s high home values, virtually any property here that requires probate will clear that threshold without question. Lastly, one of the most common questions I hear is, “But there is a will. Why do we still need to go through probate?” And it’s true that probate usually still happens even if the deceased individual had a will. You will want to have your attorney thoroughly review all of the estate documents to determine whether probate will be necessary or not.

Another common question I get is: how long does probate take? The honest answer is that California probate takes longer than most people expect, usually 9-12 months if the probate is not contested. How long your home sale will take is going to depend on whether or not you as the Personal Representative are granted full or limited authority to sell the real property.

The process begins when you or your attorney files a petition for probate with the Superior Court in the County where the decedent resided. The court then schedules the first court hearing, usually four to six weeks out.

It is at this initial hearing that the court will determine the Personal Representative for the estate. If all goes well, then about two weeks later the judge will issue the Order for Probate along with the Letters Testamentary (when there is a will) or Letters of Administration (when there is no will). These all-important documents outline who has been appointed the Personal Representative for the estate and if they will be granted full or limited authority. Your attorney will almost certainly request that the PR be granted full authority under the Independent Administration of Estate Act (known as IAEA). Full authority means that you can administer the estate without going to the court for approval for every little thing, and it makes selling the real property much easier.

If you are granted full authority, then at this point we can begin to work on your home sale and a listing agreement can be signed. Be aware that this probate listing agreement can be for no longer than 90 days in the State of California. Your home can then be fully marketed and it can close without approval from the court. This can all be completed typically within 90-120 days of the petition to file probate.

This process starts with our initial consultation, where we will meet at the home, talk about market preparation and pricing, get your questions answered, and get our sale strategy put into place. A home sale with full authority moves forward under pretty normal timelines, except that our paperwork is a bit different than a traditional sale, so you will want to be sure you hire a real estate agent who is a Certified Trust and Probate Specialist in the State of California to ensure the correct documents are used. All of the documents will be shared with your attorney and with the court, and the attorney will file a Notice of Proposed Action when we have an accepted offer. We will wait for 15 days to pass and if there is no objection to the sale, we can close. When this type of sale closes, the buyer can take possession of the home and the real estate agents are paid at closing. The proceeds of the home sale will not be disbursed to heirs, though, until a final accounting of the probate has happened and the probate process has been fully completed by the court. If you are not granted full authority, but instead are granted limited authority, the home sale will take longer and be more complicated. In that instance, we are going to want to wait until the home has been appraised by the court-appointed Probate Referee. See below.

The Personal Representative must file an Inventory and Appraisal within 4 months after letters are first issued. California law requires that a court-appointed Probate Referee appraise the estate's assets, including real property. The Probate Referee is a state-appointed appraiser who determines the fair market value of the home, and they have 60 days to get this appraisal done. This appraisal matters because it sets the floor for the eventual sale price, and the court will not confirm a sale below 90% of the appraised value. Since the referee often doesn’t step foot in the home they are appraising, it’s important for your agent to also provide a detailed market analysis and documentation about the home’s condition in the event that the home’s value is not in line with recent market activity. It’s not at all uncommon for some of these properties to be in original condition with significant deferred maintenance, so that’s something to pay close attention to.

If the Personal Representative has been granted limited authority, it means the court is going to need to confirm the sale of the home. This is where you absolutely (definitely) want to be sure you have hired a real estate agent who has experience with probate sales, as most buyers and sellers and even most agents have not encountered this process before. A good agent can make the probate sale process accessible and understandable for all parties so that your transaction doesn’t get hung up on technicalities, and so buyers are not too intimidated to make offers on the home.

Under the court confirmation process, several requirements must be met. First, the sales price must be no less than 90% of the court-appraised value. Second, the earnest money deposit must be a minimum of 10% of the sales price. Special paperwork must be used for the transaction, and once an offer is received, it will then be submitted to the attorney. At that time, a Notice of Sale of Real Property must be published in a local newspaper where the property is located, and it must be advertised publicly three times over a 10-day period. This is so the public is aware that the home will essentially be open for auction in court. Once those 10 days have passed, then the seller can sign the purchase agreement and the buyer can start their due diligence. Once all contingencies have been removed except for the contingency of court confirmation, then your probate attorney will file the Report of Sale and Petition for Order Confirming Sale of Real Property.

The information on this filing will be used to determine the starting overbid amount, which is calculated using the following formula: Original Bid + 10% of first $10,000 of original bid ($1,000) + 5% of original bid (minus $10,000) I know it’s odd, but I didn’t make it up! You will then have a court hearing where other buyers have the opportunity to submit overbids on the home. This is usually stressful for the buyers who have already been in escrow on the home. They thought they had a deal, so they will anxiously be watching to see if someone is going to outbid them for the house. Once the sale is confirmed, the judge will sign an Order Confirming Sale of Real Property, and the transaction can move forward to closing. As with full authority, when the home closes, the buyers can take possession and the real estate agents will be paid, but the proceeds from the sale must go to the estate’s bank account until probate has concluded.