Probate and trust home sales in California: a guide for attorneys and fiduciaries

Does the house have to go through probate before it can be sold?

It depends on how the house was owned. A home held in a living trust is usually sold by the successor trustee without going to court. A home owned in the person's own name generally needs a probate case, and the sale is made by the court-appointed executor or administrator (the personal representative).

Some homes pass outside both: property held in joint tenancy, or as community property with right of survivorship, typically passes directly to the surviving owner. Smaller estates may also qualify for a simplified court process (see below). The deed, and the attorney handling the estate, settle which path applies.

Can an executor sell the house before probate is finished?

Yes. A personal representative can sell estate real property while the probate case is still open, once the court has appointed them and issued letters. Many estates sell the house during probate rather than waiting for the case to close, which avoids months of carrying costs on a vacant home. What matters is the level of authority the court granted, which decides whether the sale needs a court confirmation hearing.

How long does a probate home sale take in California?

A full California probate commonly takes about nine to eighteen months from filing to closing the estate. The sale of the house is one part of that. With full authority under the Independent Administration of Estates Act, the sale itself can run on a timeline close to an ordinary sale, plus a notice period of at least 15 days. When the sale needs court confirmation, add the time to get a hearing date, which varies by county and is often several weeks or more.

A trust sale usually moves faster because no court is involved, although successor trustees often wait out the notice period described below before closing.

What is the difference between a sale with full authority and a court-confirmed sale?

Under the Independent Administration of Estates Act (often shortened to IAEA), the court can give the personal representative full authority to sell real property without a confirmation hearing. Instead, the representative sends a Notice of Proposed Action (Judicial Council form DE-165) to the heirs and beneficiaries at least 15 days before the sale. If no one objects, the sale can close like a typical sale.

If the representative has only limited authority, or someone objects, the sale needs court confirmation. That path brings a minimum price rule, a court hearing and the possibility of overbids in the courtroom.

What is the 90 percent rule in a probate sale?

In a court-confirmed private sale, the court will not confirm a price below 90 percent of the property's appraised value, and the appraisal must have been made within one year before the confirmation hearing (California Probate Code section 10309). The appraisal is usually done by the court's probate referee. For example, a home appraised at $1,500,000 cannot be confirmed for less than $1,350,000.

How does overbidding work at the confirmation hearing?

Once the representative accepts an offer, the court sets a hearing to confirm the sale. Other buyers can attend and bid more. The first overbid must exceed the accepted offer by at least 10 percent of the first $10,000 plus 5 percent of the rest (Probate Code section 10311). After that, the judge sets the bidding increments, and the court confirms the sale to the highest qualified bidder.

Buyers in these sales should know their accepted offer is not final until the hearing, and overbidders generally need to bring a deposit and proof of funds. For the estate, the overbid process can raise the final price.

How is a house in a living trust sold?

The successor trustee named in the trust has the power to sell trust property without court approval in most cases (Probate Code sections 16226 and 16220). Before selling, the trustee typically records an Affidavit of Death of Trustee and gives title and escrow a certification of trust to show their authority.

Within 60 days after the trust becomes irrevocable, usually at death, the trustee must send a written notice to the beneficiaries and heirs (Probate Code section 16061.7). That notice starts a 120-day period in which someone can contest the trust, so many trustees and their attorneys plan the closing date around it. The trust document itself may add its own requirements, such as co-trustee signatures or beneficiary consent.

Does a probate or trust sale require the usual seller disclosures?

Sales ordered by a probate court, including sales under independent administration, are exempt from the standard Transfer Disclosure Statement, and many sales by a trustee are as well (California Civil Code section 1102.2). That exemption is narrower than it sounds. Other disclosures, such as the Natural Hazard Disclosure and the federal lead-based paint disclosure for homes built before 1978, still apply, and sellers and agents still must disclose known facts that materially affect the value of the property.

Should the estate fix up the house or sell it as-is?

Both are common. Many probate and trust homes are sold as-is, especially when the home needs significant work or the heirs live far away. Others do targeted work first, such as clearing the contents, cleaning, paint and landscaping, when it is likely to bring a higher net price. The personal representative or trustee has a duty to act in the beneficiaries' interest, so the decision usually comes down to the estimated cost of the work against the likely increase in price, with the reasoning documented.

What happens to a vacant house while the estate is being settled?

The representative or trustee is responsible for protecting it. That usually means notifying the homeowner's insurance company (many policies limit coverage when a home sits vacant), securing doors and windows, keeping utilities on as needed, stopping mail and checking on the property regularly. Mortgage payments, property taxes and insurance premiums generally continue to come due and are paid from estate or trust funds.

Will the heirs owe capital gains tax when the house is sold?

Often less than people expect. Under federal tax law, inherited property generally receives a stepped-up basis equal to its fair market value at the date of death (Internal Revenue Code section 1014). If the house sells for close to that value, there may be little taxable gain. Community property can receive a step-up on both halves when the first spouse dies. How this applies to a particular estate is a question for the estate's certified public accountant or tax attorney.

What if one of the heirs wants to keep the house?

An heir can buy out the others' shares, often with a loan, or the estate can distribute the house to that heir as part of their share. If the heir is a child of the person who died and will live in the home, California's Proposition 19 may limit the property tax increase. The child must make it their primary residence within one year, and the protected amount is capped at the parent's taxable value plus $1,044,586 for transfers from February 16, 2025 through February 15, 2027 (California State Board of Equalization). Rentals and vacation homes do not qualify. If the heirs cannot agree, the dispute generally goes to the estate's attorney and, in some cases, the court.

Is there a simpler process for smaller estates?

Yes. For deaths on or after April 1, 2025, an heir may be able to use a Petition to Determine Succession (Judicial Council form DE-310) instead of full probate when the house was the person's primary residence and is worth $750,000 or less. Personal property can be collected with a small estate affidavit when the estate is worth $208,850 or less, and California real property worth $69,625 or less can be transferred by a separate affidavit (California Courts self-help center). An attorney can confirm which procedure fits.

How much does probate cost, and how is the real estate agent paid?

California sets the ordinary fees for the personal representative and the estate's attorney by statute (Probate Code sections 10800 and 10810): 4 percent of the first $100,000 of the estate's gross value, 3 percent of the next $100,000, 2 percent of the next $800,000 and 1 percent of the next $9 million. Each receives that amount, so on a $1,000,000 estate the ordinary fees come to about $23,000 each. Court filing, publication, probate referee and bond costs are extra.

The listing agent's commission is paid from the sale proceeds at closing. In a court-confirmed sale, the court approves the commission and how it is split when an overbidder's agent is involved.

What does the listing agent handle, and what stays with the attorney?

The agent handles the real estate side: pricing, preparing and marketing the property, managing showings and offers, and seeing the transaction through escrow. Our members also coordinate the sale timeline with the attorney's office, for example by timing an accepted offer to the Notice of Proposed Action period, or by supplying the offer and marketing details the attorney needs for a confirmation petition. The attorney keeps everything legal: the petition, notices, court filings and advice to the personal representative. Our members do not give legal or tax advice.

Can the agent help with valuation for the inventory or a date-of-death value?

In a probate case, the inventory value is set by the court's probate referee, not by the agent. An agent can still provide a comparative market analysis or broker price opinion that the representative, trustee or tax preparer may find useful, for example as a reference for a trust's date-of-death value or for pricing the listing. For a formal appraisal used in tax reporting, the estate's certified public accountant will usually recommend a licensed appraiser.

How will I be kept informed during the sale?

With the client's permission, the member handling the sale sends you updates at the key points: listing, accepted offer, the end of contingencies or the confirmation hearing, and closing. If you prefer to be copied on everything, or only on milestones, tell us when you refer.

Is there a referral fee for attorneys or accountants?

No. In California, a real estate broker generally may not pay a referral fee to someone who is not licensed as a real estate broker or salesperson (Business and Professions Code section 10137), so we do not pay referral fees to attorneys, accountants or other professionals. Referrals between our members' brokerages follow the same rule.

How do I refer a client to the collective?

Send us the property location and what your client needs, and we match the client with a member who works in that county and has handled probate and trust sales. With the client's permission, we keep you updated at listing, accepted offer and closing. Refer a client.