Probate

This section is for those who are executors or administrators of probate estates, or those who are considering buying a property, which is being sold in probate. This is general information only. It is not to be construed as legal advice in any way.

There are two types of probate sales. The first is known as IAEA (Independent Administration of Estates Act.) This is where the executor-administrator has full authority of sale. In this case, the sale is treated much like a regular sale. The executor-administrator, however, is exempt from disclosure, unlike an ordinary sale. All heirs must be notified in writing of the sale, and would have 15 days to object to the sale. If this occurs, the sale would most likely need to go to court for confirmation.

The second type of probate sale involves court confirmation. The executor or administrator of an estate of a decedent may sell the real property of the estate where it is found to be in the estate's best interests. The representative of the estate may initiate a probate sale by seeking offers to purchase directly or through a Real Estate Broker. In both cases, the real property offering must be advertised by the publication or posting of a notice. Acceptance of an offer by the estate representative Is subject to probate court confirmation. The representative of the estate, with court permission, may grant an exclusive right to sell the property for a period not to exceed 90 days.

An offer to purchase must be for a price which is not less than 90 percent of the property's appraised value. When an offer is accepted, subject to court confirmation, the representative will petition the court to confirm the sale. When the court has set the matter for hearing, any interested person may bid at the time of the hearing. To open the bidding, there must be an increase over the bid returned to the court for confirmation which is at least 10 percent of the first $10,000 bid and five percent of the bid in excess of $ 10,000. Once the bidding has been opened, the court in its discretion may permit the bidding to continue on lesser raises until it declares a bid to be the highest and best obtainable. The sale then will be confirmed by the court to the maker of that bid. Ordinarily after court confirmation of a sale, normal escrow procedures are used to consummate the transaction on the terms and conditions approved by the court.

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