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Understanding the “Stiff” rules of a Probate Sale with Court Confirmation. There are many surprises
BY ANTONIO & ALEXIA CARDENAS
Real Estate Agent with Alameda County – San Leandro, CA.
The process of sale of real property through Probate Sale with Court Confirmation is a court regulated series of steps that must be clearly and carefully managed. The deadlines are unforgiving, the documentation is specialized, the time elements are critical and the court’s oversight must be honored at all times by all parties.
If you bought a house with a tag that reads: “Probate Sale with Court Confirmation” required. What is the one question you don’t want to hear at the court confirmation hearing? Are there any over bidders? After being in escrow for 30-45 days, having your loan approved, maybe even having the moving van packed and ready, someone might stand up in court to answer that question and buy the same house on the spot, or at least make you pay more for it. Being ready to deal with this situation could bring this type of purchase to a happy ending.
A Probate sale is a legal proceeding used to liquidate and settle a person’s legal and financial affairs after death. Here in California, these sales are conducted in the Superior Court of the decedent’s county of residence at the time of death. Court confirmation is either chosen or required, there are probate sales that do not require court confirmation and are handled just like any other sale.
Why is there a Probate? How much does it cost? When does it happen? How long does it take? These are all valid questions that are better left for an attorney to answer, that is why you should not take this information as legal advise.
From the Realtor’s point of view, if you see a house for sale with a label: “Probate Sale With Court Confirmation” be aware that this tag affects the offering price, the condition of sale, the paper work used and most important of all… you will not know whether you bought it or not until about 30-45 days after you get your offer accepted, and you’ll need the judge’s gavel to confirm that you are the new owner. Understanding the following steps ought to help you stay on course:
* The offer must be written on a Probate Purchase Agreement form. These documents clearly specify some of the most important time elements involved, plus it clarifies the differences between 3 different Probate Sales.
* An offer on a Probate Sale with Court Confirmation must be at least within 90% of the asking price which is the Probate Referee’s Appraisal Value. Offers below that will not be accepted.
* A 10% deposit must be presented with the offer; often times it must be a cashier’s check issued in the name of the decedent’s estate. Buyers with no down payment VA, or FHA loans with minimum down payment might not have a chance.
* Once the offer is accepted it will have a “conditional acceptance” and the time periods for physical inspections and appraisals begin at this point. After the buyer’s removal of such contingencies a court date for the confirmation hearing of the sale is scheduled.
* On the day of the court hearing (which is 30-45 days after removal of contingencies), all parties must show up in court. During this hearing, the previously accepted bid may be overbid by another buyer, this interested party must appear with cashier’s checks in hand and be ready to raise the price under the supervision of the judge.
* Buyers must fully understand the overbidding process, each court will handle the rules differently, but for the majority it is A) 5% above the accepted price plus $500. Or B) 10% of the first $10,000 plus 5% of the balance of the accepted offer. In each case the judge will announce the minimum amount of the overbid after that; it could be $1,000 or $10,000 depending on the price range. The winning bidder must deposit at least 10% of the final price with a cashier’s check.
Any person who bids in court must make an unconditional offer. Obtaining financing or approving inspections should not be a condition of the offer. In the event the buyer defaults after a court confirmed sale, the buyer may lose the deposit. If the court confirms the sale to an over bidder rather than the original buyer, the original buyer’s deposit shall be refunded.
Real estate commissions are also subject to the approval of the court, and the rules are very different and very clear. If the over bidder has a Realtor, or worse, if there are other bidders with Realtors, what happens with the commission? Is the first purchaser’s Realtor entitled to a commission if his buyer is not the winning bidder? What happens if the over bidder does not have a Realtor? Once you are involved in this type of sale, either as a buyer or a Realtor, or Executor, you better know how the rules apply to you. A Realtor should encourage the home buyer to familiarize himself/herself with this process.
Above all: AVOID THE PROBATE PROCESS… CREATE A TRUST! Sorry, I did not mean to shout! But you’ll better not get caught dead without a will; your family will make you pay for it! (By not cleaning your grave yard for example)It will save them lots of time and money so have your affairs in order just in case, no matter how young or healthy you think yo