Managing an estate after the loss of a loved one is never easy. During this difficult time, I’m often asked what are the differences between a Trust and a Probate sale. My reply is: They are quite different, and, no two are alike.
To assist you in navigating this process, I’ve compiled a list of frequently asked questions covering these types of real estate sales. But first, let’s start with the terminology:
Administrator / Executor
The Administrator (or Executor) has the authority to list and sell the property, however, the Administrator must be designated or identified before a Trust or Probate sale can occur.
Administrator with the Will Annexed
When the appointed Administrator is unable (or unwilling) to act, the Administrator with Will Annexed is appointed. Generally, an Administrator with Will Annexed is appointed when the Testator (the person who has written and executed a last will and testament) does not name an executor.
Beneficiary/Beneficiaries
The Beneficiary is eligible to receive disbursements from a trust, will or life insurance policy. Beneficiaries are specifically named in the Will, or meet the eligibility stipulations.
Heir
An Heir is a person who inherits, or has a right of inheritance after a death.
Interested Person
Anyone with the potential to inherit from the decedent is an Interested Person.
Probate Referee
A Probate Referee honestly and impartially determines the value of all non-cash assets of an estate. Once determined, the Probate Referee is required to attest to the value of the following:
- Real Estate
- Artwork
- Antiques and collections
- Intellectual and business-related property
- Other assets of value
A Probate Referee must:
- Be an Attorney licensed in the state of California
- Be a Certified Public Accountant in California for three or more years
- Have experience in appraisal and property valuation
Real Property
Real property is defined as land and permanent attachments like homes or buildings. Resources beneath the land, like water, gas, oil, and minerals, are considered permanently attached.
Testate or Intestate
If you die leaving a valid last will and testament you are said to die Testate. Intestate is when you die without a valid or final will. If some but not all of your assets are covered in a valid will, you are Partially Intestate.
Trustee
A Trustee is an individual, or member of a board, who is given powers of administration of the property in trust, legally obligated to administer the estate solely for the purposes specified.
Will
A will is a legal document that outlines the distribution of your assets after death, and can appoint guardians for minor children.
Q: What is a Trust Sale?
A: A Trust Sale is when a third party acts on the instructions of a Trust, or on the wishes of the Beneficiaries to sell Real Property. The assets and proceeds from a Trust Sale are designated for the welfare of the Beneficiaries, not the Trustee.
Q: What is a Probate Sale?
A: A home is sold in a Probate Sale when someone dies intestate, or without bequeathing their property. The estate takes over and administers the property's sale. The court wants to be certain the property is marketed and sold at the best possible price.
Q: When is a Home Sold in Probate
A: When someone dies Intestate, or without bequeathing their property, the courts sell the property in a Probate Sale to ensure it’s marketed and sold for the best possible price.
Q: When Does the Probate Process Begin?
A: The Probate Process begins when the Administrator or Executor presents the will at a Probate Court. All outstanding debts, claims, or taxes are paid are cleared before payouts to heirs or others named in the will.
Q: What is the Timeline of a Probate Sale?
A: The timeline varies from three months to several years, as the Probate Timeline is designed to prevent the Administrator / Executor from making hasty decisions while grieving. It also provides enough time to notify beneficiaries and creditors and final dissolution of the estate.
Q: What is “Notice of Proposed Action?”
A: Commonly used in Probate Sales when dealing with estates, a Notice of Proposed Action is when action is proposed to be taken without court supervision.. A Notice of Proposed Action must contain a description of the proposed action in specific terms.
Q: Do I need an attorney for a Trust or Probate Sale?
A: The short answer is now, however, it depends on the deceased’s estate planning. It’s possible for anyone to interact with the courts, however working with an attorney experienced in Probate Sales is never a bad idea.
Q: Can my Realtor handle a Probate or Trust sale?
A: Yes. Be sure to work with a Realtor with experience in Probate and Trust Sales.
Disclaimer:
If you find yourself dealing with a Trust or any matters related to Estate Planning, or Probate it is very important to work with an attorney you trust.
I have not and will not verify or investigate the information supplied by third parties.
