Key Takeaways
- Probate is a court procedure that involves the marshaling and inventorying of all assets, paying debts in an estate, and distributing remaining assets to beneficiaries, either with or without a will.
- Probate for real estate in California is necessary when the value of the property exceeds $184,500 for general assets or $750,000 for a primary residence.
- The estate administrator is responsible for managing real estate property, facilitating the sale of the property if necessary, paying debts, and distributing remaining assets to beneficiaries.
- If selling real estate, the property must be appraised by a probate referee and sold for at least 90% of the appraised value within a year of the appraisal.
Introduction
Real estate property is often one of the most valuable assets administered during probate—these may include a primary residence, vacation home, or other property. Navigating managing real estate during a probate proceeding in California requires a detailed process with strict court procedures to follow. During probate, the appointed estate’s personal representative is responsible for facilitating the sale, management, or distribution of any real estate owned by the estate.
If your loved one left behind real estate property as part of their estate, or you are a personal representative administering an estate, then it is important to understand the laws and regulations surrounding property sales during probate. Understanding the unique legal requirements surrounding probate for real estate in California and consulting a lawyer are valuable first steps toward a smooth estate administration.
Overview of the California Probate Process
Probate administration is the court process where a deceased person’s debts are paid and their assets are distributed to the appropriate beneficiaries or heirs, either with or without a will.
Probate involves the following steps:
- Initiating Probate
- Validating the Will and Appointing an Executor During a Probate Hearing
- Marshaling and Inventorying All Assets and Property
- Paying Debts and Taxes
- Transferring Assets to Beneficiaries According to a Will or State Law
Assets subject to probate may include real estate, financial accounts, collectibles, and other estate property. However, there may be exceptions to when probate is absolutely necessary, depending on the type of assets and the status of their ownership.
When Is Probate Required?
Probate is required in California both when an estate’s total gross value exceeds $184,500, according to California Probate Code sections 13100 and 890, and when the assets are not held in title by another party. Estates under this limit are not subject to probate and instead can bypass the probate process through an expedited estate administration process or a direct transfer.
California Assembly Bill 2016, passed in 2025, also set new standards for when probate may be required. Probate is still not required to distribute assets under $184,500, but it is also not required for a decedent’s primary residence valued under $750,000.
Probate is also not necessary for non-probate assets, also known as assets where the title has already been transferred within a decedent’s lifetime. These assets may include bank accounts with payable-on-death beneficiaries, life insurance policies, and property held under joint ownership.
Is Probate Required for Real Estate?
Probate is required for any real estate property in California valued over $184,500 left by a deceased individual unless the property is held in a living trust or is owned by a beneficiary with joint ownership with rights of survivorship.
However, 2025 bill AB-2016 designated that a primary residence is no longer required to pass through a full probate if the property is valued under $750,000. A primary residence is the property where the decedent lived full-time prior to their death. In these cases, the property may be distributed through a simple probate rather than a full proceeding.
During probate administration, the estate’s personal representative has the authority to oversee the management of real estate property, paying utility bills, property taxes, and maintenance costs. The representative also has the authority to sell real estate if it is in the estate’s best interest. Selling real estate during probate may be necessary if it is to pay outstanding debts or if the proceeds of a sale are earmarked to be divided amongst beneficiaries.
To understand whether probate is required for the real estate held in your family’s estate, consult a skilled probate administration attorney who may be able to provide further guidance surrounding your unique circumstances.
Avoiding Probate for Real Estate
In some cases, select assets or an entire estate may be able to avoid probate according to state law. In California, assets that are owned in joint tenancy or held in trust can bypass the probate process entirely. If all of the estate assets meet these criteria, then probate will not be necessary. Probate is a complex and time-consuming process, so avoiding probate helps save time and money for the estate and, ultimately, the heirs and family of the decedent.
Steps that can be taken to transfer assets while avoiding probate include:
- Establishing a revocable living trust to hold assets to be transferred to beneficiaries and exempt them from probate
- Designating beneficiaries for bank accounts and life insurance policies
- Establishing joint ownership for property so that beneficiaries assume ownership after the decedent’s death
- Utilizing transfer-on-death deeds to designate beneficiaries to inherit property directly without probate
The key to avoiding probate is strategic estate planning. The head of an estate should consult financial advisors and an estate planning attorney to create a proactive and detailed estate plan.
Distinctions in Probate Roles
Understanding the distinct roles in probate is essential for understanding who holds what responsibilities and rights in the process.
Executors vs. Administrators
An estate executor and estate administrator both serve similar roles as an appointed personal representative of an estate. However, there is an important distinction to be made between the two.
An executor is appointed by the probate court during testate administration after having been identified in a will. Meanwhile, an estate administrator is appointed by the probate court during intestate administration when the decedent did not leave a will. Absent a will, the administrator may be identified by the court, who may select a close family member or a third party.
In either role, the appointed individual serves an important role in estate and probate administration as the representative of the estate. Depending on whether the estate is managed either through testate or intestate administration, the estate executor or administrator has the authority and responsibility to carry out the best interests of the estate by paying debts, selling property, and administering assets.
Heirs vs. Beneficiaries
Heirs and beneficiaries may both inherit from an estate, but their right to an inheritance differs depending on the circumstances of the estate—this distinction usually occurs when probate is handled through testate administration (with a will) or through intestate administration (without a will).
An heir is any party with a right to a share of the estate according to state intestacy laws. Heirs are typically a direct relative to the decedent. State intestacy laws list the line of succession of heirs as a decedent’s spouse, children, parents, siblings, or nieces and nephews in that order. During intestate succession, an inheritance is distributed according to this line of succession.
Beneficiaries may also be family members, but they are explicitly identified in the decedent’s estate planning documents, such as the will or trust instrument, insurance policies and retirement accounts. During testate administration, beneficiaries listed in the estate planning documents take precedence to inherit over intestate heirs.
Selling Real Estate Under Probate
Selling real estate may be necessary during the probate process if it is required by the estate planning documents or determined to be in the best interests of the estate. If an estate has debts levied against it that need to be resolved, selling property may be necessary to pay these debts. In other instances, either the will or state intestacy laws may call for the sale of property to distribute the proceeds to the identified beneficiaries or legal heirs.
In these cases, the sale of real estate during probate is managed under the discretion of the appointed estate executor or administrator in close conjunction with the probate court and professionals like probate referees and certified real estate agents.
The sale of real estate property may be facilitated through some of the following methods:
- Real Estate Agency – A real estate agent selected by the executor may be engaged to solicit offers and sell the property through the private market.
- Private Sale – A private sale is handled by the estate representative, who likely will publish an ad in the newspaper and accept confidentially placed bids before granting a sale to the highest bidder.
- Public Auction – Estate property may be sold through an auction that is marketed in a public newspaper for a set date and time; the property then will be sold to the highest bidder.
- Private Auction – Private auctions are similar to public auctions but are instead handled by private auction companies. In these cases, the auction company will market the property and accept the highest bid.
Which of the above methods is used to sell property is at the discretion of the probate court. It’s important that the estate’s personal representative works closely with the courts and petitions the court for approval to conduct a sale in the best possible manner.
How To Sell Real Estate During Probate
In California, selling real estate during probate requires adherence to a series of court-imposed procedures that include following key deadlines and submitting specific documentation. Personal representatives will need to consider the following processes to comply with California laws and regulations.
The Role of the Estate Personal Representative
The estate executor or administrator serves as the primary person selling property during probate, and the property cannot be sold without their consent. The personal representative is responsible for facilitating sales and ensuring they follow their legal responsibilities in the process.
They are beholden to strict procedures:
- Ensuring the property is sold at the highest possible value
- Providing advance notice of proposed actions to beneficiaries, such as a potential sale or purchase of real estate property
- Seeking court approval to finalize a sale unless granted the authority to bypass this confirmation
- Distributing the proceeds from the sale to pay estate debts or, if all debts are resolved, distributing them to beneficiaries
- Disclosing all information about a property in accordance with state disclosure laws, including value and market advantages.
A personal representative should consult an experienced estate and probate administration attorney. An attorney may be able to provide guidance on how to navigate the court process for selling property while ensuring the representative carries out all the roles and responsibilities as set by state and local regulations.
The Role of Probate Referees
A probate referee is a professional appointed by the court who is responsible for appraising a deceased person’s assets during probate administration. While some assets, such as bank accounts or life insurance policies, may be valued by the personal representative, real property and other assets must be appraised by a probate referee.
This appraisal will ensure that the property is valued at its fair market value based on the date-of-death so that the estate obtains an appropriate return for any sale. The valuation provided by the probate referee will then serve as a baseline expectation for the listed sale value of the property.
Given the value provided by the probate referee, the executor will then document that value on a form known as the “Inventory and Appraisal” form. The court will then expect the property to be sold for at least 90% of the appraised value so that the estate does not experience unnecessary losses, barring extenuating circumstances leading to a reasonable lesser value for the property.
Petitioning the Probate Court
The personal representative of an estate is responsible for filing a Petition to Sell Real Property. The court will offer guidance on how to sell the property, as the court may designate that the property is to be sold through public auction or private sale on the open market.
The executor or estate administrator will also need to petition the probate court to approve the final sale unless they have full court-approved authority to distribute the assets independently. When petitioning a court for authority to distribute the estate, the executor may also include a request for full authority under the Independent Administration of Estates Act (IAEA). Still, the executor may file this request at any time during probate.
This power can be denied by the courts in the following instances:
- An interested party objects to the petition and has “good cause” to do so.
- The decedent’s will explicitly states that the executor should be denied these powers
If this request is granted, the executor will not need court supervision over estate administration or real estate sales. However, if the petition is denied, the personal representative will still have limited authority to administer the estate under the discretion of the court. Even if IAEA authority is granted, a personal representative may still wish to seek court approval of a real property sale if the representative is concerned about disputes surrounding the sale either from heirs or third parties.
Responsibilities of Real Estate Agents in Probate Sales
When a probate sale is necessary, the executor may choose to engage the support of a real estate agent to facilitate a smooth sale of the property. When seeking this support, search for a professional agent with probate certification.
Real estate agents have the following responsibilities:
- Conducting a complete and competent visual inspection of the property and disclosing any factors that might impact its value
- Marketing the property and finding a potential buyer
- Ensuring that the sale price is at least 90% of the property’s appraised value within a year of the appraisal
While carrying out these responsibilities, it’s crucial that real estate agents adhere to specific guidelines and deadlines set forth by the court. A certified probate real estate specialist will understand the necessary procedures for selling a property during the probate process.
Handling Offers on Probate Properties
After the court approves the sale, the estate will solicit offers for purchasing the property. As a requirement set by the court, any purchase offers must be 90% or more of the probate referee’s appraised value unless a legitimate explanation is provided as to why the sale price should be lower. Upon receiving and accepting an offer, the estate representative must provide a Notice of Proposed Action to all heirs, informing them of the sale. This notice provides heirs with 15 days to review the terms of the proposed sale and raise any objections.
If there are no objections to the process during this timeframe, the sale may be able to move forward for final court approval. If objections do occur, beneficiaries may request a court hearing to present them—during the hearing, the court will hear both sides to consider whether the sale is in fact in the estate’s best interest.
A real estate agent should continue to solicit offers throughout the entire process with hopes of soliciting the greatest possible value for the estate. Finally, the final sale price is subject to court approval based on court rules—these rules may differ depending on the respective county court in California.
The Role of Court Confirmations
All real estate sales during probate are subject to court approval. After the sale price of the property is agreed upon, the executor will submit the offer for court confirmation.
Court confirmation may slow the process of finalizing a sale, but it is a necessary process. Confirmation requires the scheduling of a court hearing, which can take 30 to 45 days or longer. While awaiting a hearing (and even up to the time of the hearing to confirm the sale), the property may still remain available for other buyers to bid—therefore, a probate sale may be disrupted by another buyer presenting a higher offer in court and outbidding the original buyer.
The one exception to the need for a court confirmation is when a court provides full authority to the estate’s personal representative under the Independent Administration of Estates Act (IAEA). In these cases, the executor or administrator will not need final court approval and may conduct a sale under their own discretion.
The ability to bypass court approval streamlines the process of a sale and vastly reduces the risk of an overbid disrupting a sale. A personal representative may apply for IAEA authority by filing a court petition at any point during the estate administration process. As mentioned above, even with IAEA authority, there are still instances in which a personal representative may still consider filing a petition to approve the sale.
Distribution of Property During Probate
After a property is sold, the proceeds from the sale are required to be invested back into the estate. The next steps will depend on the circumstances surrounding the estate:
- If there are any debts or liens levied against an estate, then the proceeds from the sale can be used to pay these debts and resolve valid creditor claims.
- However, if there are no debts, then the representative can submit a petition for final distribution, and the proceeds of the property can be distributed and split among the heirs or beneficiaries in line to inherit from the estate
During testate administration, where a will exists, the representative must distribute any remaining property to the beneficiaries identified in the will per the decedent’s intentions. During intestate administration, without a will, the representative must distribute property to legal heirs according to state intestacy laws.
In some cases, a will contest or inheritance dispute may prolong probate and delay the distribution of property. Consulting an experienced probate litigation attorney to navigate and potentially resolve these disputes may promote a smooth administration process going forward.
Managing Estate Assets During Probate
During probate, the estate executor or administrator is responsible for managing and protecting all estate assets, including real estate property. Regardless of whether real estate property or other assets are to be sold during probate or transferred directly to beneficiaries, the estate representative is obligated to keep the property in the best possible condition and ensure it retains its value.
This may include the following steps:
- Continuing to pay the property mortgage or resolving any debts affecting the estate, if applicable
- Paying utility bills required to keep the property in good condition
- Paying property and estate taxes
- Contacting the insurance company and verifying continued coverage of the property
- Notifying insurers that a property is unoccupied
- Changing locks on the property
- Having assets appraised by the probate referee
Negligence in paying bills or failing to maintain the value of the property could be considered a breach of fiduciary duty on the part of the representative. It’s essential that the personal representative understands the full scope of their duties when managing an estate and its assets.
Additionally, in the event the probate estate is held up for whatever reason (in litigation or otherwise), it may be necessary for the personal representative to consider leasing or renting the real property to make it productive in the interim before a sale occurs.
Practical Tips for Navigating Probate Real Estate Sales
Given the complexities of navigating real estate sales during probate, executors must be well-informed about California regulations and be well-equipped with professional support and guidance.
Consider the following tips when navigating probate real estate sales:
- Utilize a certified probate real estate agent to ensure compliance with state regulations and simplify the process
- Contact a probate estate administration attorney for support in understanding the legal requirements surrounding managing real estate during probate.
- Maintain consistent communication with all interested parties in the estate, including heirs and beneficiaries.
- Keep detailed records of all aspects of the probate sale, including property appraisals, sale documents, and communications between potential buyers.
- Inform beneficiaries of the plan for distributing sale proceeds according to either the will or state intestacy laws.
Find Help With Probate for Real Estate in California from RMO Lawyers
Understanding how to navigate probate for real estate in California is essential for ensuring a smooth administration of the estate and honoring the decedent’s wishes. To follow the necessary laws and regulations surrounding real estate sales during probate, contact a probate administration attorney who may be able to provide guidance.
The lawyers at RMO LLP are dedicated to providing you with careful guidance and a compassionate hand to advocate for the best interests of your loved one’s estate. With decades of experience in navigating probate estate administration involving real estate, we are well-equipped to support you with your estate.
Schedule a consultation with our team at RMO Lawyers to discuss your case and any questions you may have.
Glossary
Estate executor – An individual appointed by a probate court who is responsible for managing and administering an estate and is named as executor in the deceased’s will.
Estate administrator – An individual appointed by a probate court to manage and administer an estate when there is no will naming an executor or the named executor is deceased or otherwise cannot serve, including because they are disqualified or were suspended or removed.
Testate administration – The condition where a person dies with a valid will, resulting in the distribution of the deceased person’s estate according to the terms outlined in the will.
Intestate administration – The condition of dying without a valid will, resulting in the distribution of the deceased person’s estate according to state intestacy laws.
Notice of proposed action – A formal notification issued by a trustee or personal representative informing interested parties of planned actions related to the estate or trust, such as distributions, sales of property, or significant decisions affecting the trust.
Personal representative – An overarching term for a person who is responsible for administering an estate, encompassing the role of executors, administrators, and trustees.
Primary residence – The property where an individual resides full-time as a fixed permanent home that they have the intention to return to whenever they are absent, but not limited to the decedent’s residence at the time of their death.
Probate – The court process in which the assets of an estate are gathered, accounted for, and distributed to the heirs or beneficiaries after an individual passes away, either in accordance with the deceased’s wishes if they had a will or following local intestacy laws if there was no will.
Real property – Any property that belongs to an estate, including land and any buildings tied to it.