Do You Need a Probate Attorney to Sell a House in California?

If the house is in probate, in practice, yes. Nobody can sell until the court appoints a personal representative and gives them authority, and nearly every estate I work with has a probate attorney handling that court side. The attorney gets the authority and keeps the case moving. The realtor sells the house. If the house is in a living trust instead, the trustee can often sell without going to court, though a trust attorney is still worth calling.

I've been licensed since 1989 and a broker since 2005, and I sell probate and trust property in Los Angeles every week. Here's how the work splits up.

Why does a probate sale need someone with court authority?

In probate, the court controls the property, not the family. As real estate attorney Jennifer Felten put it on Probate Weekly, the court ultimately controls that property, not the administrator, the executor or the realtor.

Being named executor in a will is not enough. Probate litigator Mina Sirkin told me she wants realtors to see a court document showing the person has been appointed before they sign a listing.

What does the probate attorney do in a sale?

• Files the petition and asks for the right authority. Riverside attorney Ryan Darling of Darling Law Offices said he always recommends asking for full authority. Walnut Creek attorney Rob Silverman of Silverman & Jaffe said nearly all of his probates are full authority.
• Handles the bond. Darling explained how bond waivers, and how the bond gets paid, can save families weeks.
• Gets the inventory and appraisal done. Sirkin recommends getting the appraisal before the notice of proposed action goes out.
• Sends the notice of proposed action under full authority. The people entitled to notice get at least 15 days to object (Probate Code §10586).
• Files the petition to confirm the sale under limited authority, and clears the probate notes before the hearing so it isn't continued.

What does the realtor do?

Prices, prepares and markets the property, handles occupants and access, gets offers, and writes the contract so it fits the probate. Felten stressed that the CAR probate advisory and probate purchase addendum need to be checked and attached, because they change the buyer's rights. Sirkin said she prefers that all offers be presented at the same time, on a spreadsheet, and that she wants to be looped in on legal items, not every email.

A good probate realtor makes the attorney's job easier and doesn't give legal advice.

Can I sell a probate house without an attorney?

A personal representative can technically handle a probate without one, and a few people do. I don't recommend it. Mistakes with notice, authority or court paperwork are what delay sales and cost families money. As Darling put it, you want a specialist, the same way you'd see a cardiologist for a heart problem.

What about a house in a living trust?

A trust sale usually doesn't go through probate court. The successor trustee can generally sell under the trust's terms. The trustee still has duties to the beneficiaries, including serving a notification by trustee within 60 days after the trust becomes irrevocable (Probate Code §16061.7). That's where a trust attorney earns their fee. See my guide for successor trustees selling trust property in Los Angeles.

How do I pick the right probate attorney?

From the Darling episode and my own experience:

• Their practice should be focused on probate.
• Ask early about full or limited authority, bond waivers and how the bond gets paid.
• Ask how they track and clear probate notes before each hearing.
• Ask about local experience. Every county works differently.

Watch the episodes this came from

• How To Find The Right Probate Attorney – Ryan Darling, Darling Law Offices
• Avoid Mistakes in Selling Property in Probate – Mina Sirkin, Sirkin Law Group, P.C.
• How to Sell Probate Real Estate Without Ending Up in Court – Jennifer Felten, RELAW, APC
• Preparing Real Estate for Sale During Probate – Rob Silverman, Silverman & Jaffe, PC

Related: Executor selling an inherited house in Los Angeles: 10 steps · Probate Realtor Los Angeles

Selling a house in probate?

I work with probate attorneys across Los Angeles every week, and if you don't have one, I can introduce you to several. Schedule a confidential consultation or call (310) 210-0008.

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