Can I sell a house during probate? Well the short answer is yes.
The longer answer is what you need to do to do it correctly the first time because you don’t want to do this incorrectly. It can result in liability to you. You can sell a house during probate, but how you go about doing that depends upon how long ago your loved one died and also what authority you were granted at the beginning of probate under the Independent Administration of Estates Act or IAEA.
How long ago your loved one died matters for this reason.
When you have begun your probate, (not too long after the letters were issued) you probably started working with your attorney to create a document called an Inventory and Appraisal. That Inventory and Appraisal for purposes of selling a house during probate, is good for a year after the person has died (not a year of probate) but a year after they died. So if the probate has gone on for more than a year or your loved one died over a year ago, then the value that’s been reported in your Inventory and Appraisal isn’t the one you’re going to use in what I’m about to describe to you.
You have to do a second Inventory and Appraisal called a Reappraisal for Sale so that you get a more current value of the house.
Here’s why you need it. If you have full authority under the IAEA that means in most instances you can skip the court supervised proceeding for the sale of the house. But if you’re going to do this, you must give what’s called a notice of proposed action to all of the heirs or beneficiaries. And what you’re reporting to them is one, you’re selling the house to what it’s been appraised for (and remember that either comes from the original I&A if you’re in the first year of administration or you’re within one year more accurately you’re within one year of death or from the reappraisal for sale that was done) and three, you’re going to tell them the terms of the sale.
Unsurprisingly when you report a value, people want to know is it being sold for the same value more/less? In other words, where am I? Am I being helped or harm by the sale? And the reason is when you give this notice to propose to action if nobody objects in writing to it, you can complete the sell without ever going to court. If somebody does object then you’re going to have to go through the court supervised proceeding.
If you have limited authority under the IAEA, then under all circumstances you have to go through the court supervised proceeding (and this is not something I ever recommend people do on their own because there are lots of little pitfalls along the way).
A petition has to be filed with the probate court reporting the sale, the terms of the sale, the price of the sale etc. You also have to publish notice about the sale. You have to give notice to all of the right people before the hearing is being held, informing people of the hearing date on the petition for the sale of the house.
And if you have limited authority where there’s been an objection so you have to file this petition in other words, if you’re going through the court supervised proceeding, you can expect that your attorney is going to charge what are called extraordinary fees.
In other words, they’ve had to do something that doesn’t typically arise during probate and so it is permissible for them at the conclusion of probate to ask the court for additional fees for having had to do this.
So, can someone sell a house during probate? Yes. But consider how you’re going to sell the house so that you do it right the first time. If you need to do a probate or have questions about completing a probate, do not hesitate to contact our office today or via phone at 888-443-6590.
AttorneyThe Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307