Real Estate January 13, 2023


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Dealing with a loved one’s loss of capacity or death is a very difficult experience for anyone. It can be even more disturbing if you are the person entrusted with putting the loved one’s affairs in order. It can seem like the demands on you as conservator, personal representative (executor) or trustee can be overwhelming, especially if there is real property in the picture! Yes, you will need a competent attorney and tax advisor, but a knowledgeable, experienced and empathetic Realtor® can also be an important part of your team to help you get through the process and resume your life. The Trust Team of Jon Wright and Cindy Gunadi at Coldwell Banker Residential Brokerage can help.

If the real estate is held in a Trust (see above), the process is fairly simple.  Usually the Successor Trustee has the same power under the Trust Agreement to deal with the assets of the Trust including the real estate as they would their own property.  Of course the Successor Trustee has to take care to comply with any directions in the Trust Agreement regarding the property and to insure that the sale is in the best interest of all beneficiaries.  Conflicts of interest or agreeing to sell the property to one beneficiary at a discount rather than on the open market can lead to trouble!  Sometimes the consent of one or more beneficiaries may be required.  Your Realtor(c) needs to be familiar with the process of trust sales of real estate and the appropriate provisions of the Trust Agreement or delays and/or last minute revisions to sales documents may be result.  Escrow and Title companies usually want to see portions of the Trust Agreement for the sale documents, but except for the documents which must be recorded for the sale, the terms of the Trust and of the sale are kept confidential.

However, things can be quite different if the real estate is not held in a trust but is subject to Probate (see above!)  If the Probate Court grants the executor/ administrator full Independent Administration powers, the executor or administrator can sell the property without court confirmation (but may still decide to have the court approve the sale.)  If the court has granted only limited powers, the executor/ administrator will have to comply with the detailed provisions of the Probate Code regarding sales of real estate.  Details vary from state to state and even from County to County within California, but in general, Notice of Proposed Sale must be furnished to beneficiaries and is usually published prior a court hearing at which time the proposed sale is either approved by the court, modified or subjected to an overbid process.   Conditional offers are not accepted so all financing, inspections and other standard contingencies must be arranged prior to the hearing.  In either case, the sale must be reported to the Probate Court and is part of the public record.  Luckily most Wills today grant independent administration powers but our Realtor(c) must be familiar with the probate process and ready to work with the estate attorney to achieve the best results for the beneficiaries.