Probate, Trust & Conservatorship
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Probate is the legal process, overseen by the Court, to orderly distribute the estate of a decedent. If the decedent had a will the Court appoints an executor (who may or may not have been named in the will) to gather all the assets, such as cash, bank accounts, stock accounts, personal property and real estate.
The executor also gathers the valid liabilities. Generally (though not always) all assets are reduced to cash, the valid liabilities are paid and the remaining cash is distributed in accordance with the terms of the will. A will is an opportunity for a person to direct to whom they want their money and possessions to go after they have died.
If a person dies without a will then the Court will appoint an administrator to
handle the estate. The administrator, like an executor, will gather the assets and
determine the valid liabilities. After the debts have been paid the administrator will
distribute the remaining assets. Unlike the situation where there is a will with expressed desires for who should inherit the assets, the administrator will distribute the assets in accordance with the distribution rules in the California Probate Code.
Probate Real Property Sale
Probate real property sales are under the jurisdiction of the Probate Court. The Court can grant the appointed person full authority to list, market and sell the property or can grant limited authority and require that the accepted sales offer be brought before the Court. Limit authority allows the Court to entertain overbids on the property and to determine that the accepted offer is at the best price and the best terms. We have handled both full and limited authority probate sales.
In Probate the deceased may or may not have written a valid will. If there is a will then the court appoints an Executor to handle the estate. If there is no will then the court appoints an Administrator.
We handled a probate sale where the deceased owner did not have a will. The Probate Court appointed an Administrator. The property had a beneficiary/tenant living in the property and the person refused to move. The Administrator had to file an Unlawful Detainer action to get a court order to move the person out. In the meantime, the property was not maintained at all. The toilets did not work, the refrigerator was broken with food in it, the garage door hinges were bent, the place had not been cleaned, there was personal property throughout the house and garage and overall it was in a terrible state of disrepair.
Additionally, the monthly mortgage payments and the homeowner’s fees were not being paid. The mortgage company was moving forward with the foreclosure process. There were no funds available to make any of these payments.
Once the tenant was finally out, the Administrator had to have all of the personal property removed. There were no funds to paint, carpet or clean the house.
We had professional photos taken as we wanted potential buyers to be aware of the condition. We put the property on the market. We had over 50 showings and had 12 offers with the majority of them being cash offers. The Administrator accepted an offer that was more than $25,000 above the asking and substantially above the probate valuation. We closed within 15 days. Through the escrow the outstanding mortgage and homeowner’s fees were paid in full. The proceeds were available to pay obligations and the remaining funds went to the beneficiary.