The probate process is lengthy and tedious. So selling a home in probate can add an extra layer of complexity to an already terrible process. But California’s Independent Administration of Estates Act provides a procedure to sell a home in probate without court approval.
If you have full authority under the Independent Administration of Estates Act (“IAEA”) you can sell a house in probate without court approval in three circumstances:
- Everyone consents to the sale;
- No one objects to the sale; or
- Everyone waives notice of the sale.
In all other cases, a personal representative may NOT sell a home in probate unless the court explicitly allows the sale.
If you have full authority under the IAEA, it does NOT mean that you can do whatever you want.
The information in this article will help guide you from beginning to end.
This article relies on the California Independent Administration of Estates Act, also known as the (“IAEA”). If you are from another State and want information on how to sell a property in probate in that State, check out my article titled: 11 Steps to Sell a Home in Probate Without Court Approval.
How to Sell a California Home in Probate Without Court Approval
The only way to sell a home in California during the probate process without court approval is by using the powers under the IAEA. You can obtain these powers directly from the court by asking for them when you file your petition. More on that later.
Once the court approves your petition, it can grant full IAEA authority or limited IAEA authority.
You need to have full IAEA authority to sell a home in probate without court approval.
Assuming you have full authority under the IAEA, then here is how you can sell a home in probate without court approval.
1. Notice of Proposed Action – Unanimous Consent.
The absolute first step you need to take to sell real property is to serve a document called a “Notice of Proposed Action” on the following persons:
- Each known devisee whose interest in the estate would be affected by the sale of the home;
- Each known heir whose interest in the estate would be affected by the sale of the home;
- Each person who files and serves a request for special notice; and
- The Attorney General, but only if any portion of the estate will go to the State of California.[i]
A Notice of Proposed Action is a pdf form document that you can download from the judicial council. To get the form click, HERE.
When you fill out the form, be sure to include the proposed sale date, the price of the sale, the buyer’s information, and the real estate agent’s information. I usually attach a copy of the offer and real estate agreement.
As you can see from this screenshot, the notice is pretty simple. If you are the executor or the administrator of the estate, DO NOT check the two boxes at the top of the form that says “consent” or “object.” This gets checked by the heirs or devisees.
If you are an heir or devisee, then when you receive a Notice of Proposed Action, you need to check the box “consent” or “object” at the top of page 1. I’ve circled the area in red in the screenshot above so you can see what I am talking about.
When Do You Serve a Notice of Proposed Action to Sell a Home?
You must serve a notice of proposed action no later than 15-days before the proposed action.[ii] Thus, if you wanted to sell a home without court approval, you would need to send the notice of the proposed action at least 15-days before the sale date.
How Do You Serve a Notice of Proposed Action?
The California Probate Code specifies two ways to serve a notice of proposed action. But you can also serve the notice by e-mail if the recipient agrees to accept electronic service.
The first way to serve the notice of proposed action is by sending it via overnight mail or regular first-class mail. With either overnight mail or regular mail, service is complete as soon as you put the notice in the mailbox. If you mail it, you need to send it to the person’s last known address.
Typically, when you serve a document by mail, the time to respond is extended by 5-days. But, this is NOT true of a notice of proposed action. Mailing a notice of proposed action DOES NOT extend the 15-day period.[iii]
If you anticipate that someone will object to your proposed action, then serve the notice with return receipt requested. That way, you can prove that you mailed it on the correct date.
The second way to serve the notice is to hand-deliver the notice of the proposed action.
Additionally, if the parties agree to electronic service, then you can serve the notice via e-mail. The agreement for electronic service must be in writing and filed with the court. Luckily the State of California has a form you can use. You can find the form by clicking HERE.
How Do I Know If Someone Consents to My Proposed Action to Sell a Home?
Once you serve the Notice of Proposed Action, the heirs and/or devisees have 15-days to send back their objection or consent. The form itself has two areas that need to be filled out by the heirs and/or devisees. On page 1, which I have posted above, you can see at the top of the page (circled in red) are two boxes. If someone objects, they will check the “objection” box. If someone consents, they will check the “consent” box.
In addition, on page two of the Notice of Proposed Action, heirs and devisees need to sign that they object or consent to the proposed action.
In the screenshot above, you can see the two areas that the heirs and/or devisees can choose to sign.
Thus, if each heir and/or devisee consents to the sale of the home, then you can sell it without any further court action or approval.
What Do I Do With the Consents or Objections I Receive Back From the Heirs and/or Devisees?
When you receive the notices back from the heirs and/or devisees, check to be sure that they are signed in the appropriate place. If they are not properly signed, contact the heir or devisee and correct the issue.
Once the returned notices are correctly filled out, file them with the probate court. You will also need to give copies of the consents to your real estate agent or escrow company.
What if Everyone Consents to the Proposed Action?
If you receive all of the notices back and every heir and/or devisee consents to sell the home, then you do not need to wait any longer and can sell the home at any time. But be cautious, a consent can be revoked. So don’t wait too long.
What if I Sold the Home Without Sending a Notice of Proposed Action?
If you made a mistake and sold the home without sending a notice of proposed action, you could be in serious trouble. But all hope is not lost.
If all of the heirs and/or devisees agreed to sell the home, then all you need to do is have them fill out the consent portion of the Notice of Proposed Action and file it with the probate court. If everyone consents to an action, then their written consent can be provided before or after the action is taken.[iv]
If you make a mistake and sold the home over an heir or devisee’s objection, then you could be in serious trouble.
What if Someone Objects?
If you receive a written objection to the proposed action, then you cannot sell the home without court supervision or approval.[v]
Note that the objection must be in writing, but it DOES NOT need to be on the proposed action form.[vi] A written objection is sufficient as long it is in writing. It can be an objection written on a Burger King napkin, and as long as you receive it before you sell the house, it is sufficient to stop the sale.
2. Notice of Proposed Action – Tacit Consent (No Objections)
The second way you can sell a home in probate is similar to the first. You still need to serve a Notice of Proposed Action on all heirs and/or devisees 15-days before selling the home. But, if no one objects within 15-days or before you sell the home, then you will not need court approval – you essentially have their tacit consent.
When Can an Heir/Devisee Object After a Home is Sold?
There are only a limited number of circumstances that allow an heir/devisee to object to a proposed action after it is taken.
The probate code explicitly allows any heir or devisee to object to the sale of a home after its sale.[vii]
But, if the heir or devisee received a Notice of Proposed Action for the sale of the home and failed to object, he or she cannot object to the sale after the close of escrow. However, there are a few rare circumstances that allow an heir or devisee to make an after-the-fact objection. For example:
- If the heir or devisee is a minor or an adult that lacks the capacity to object to the proposed action.
- If the guardian, conservator, or other legal representatives of the heir or devisee did not actually receive notice of proposed action.
- The guardian, conservator, or other legal representative did not waive notice.
- The guardian, conservator, or other legal representative did not consent to the action.
Thus, if you are an adult and have full capacity to object to the proposed action, then if you fail to object, you can never raise your objection again.
How Can I Avoid Confusion and Protect Myself Legally if I Sell a Home In Probate?
The best way to protect yourself is to be open and honest with all of the heirs and devisees. Send the Notice of Proposed Action and don’t hide anything on the notice. Keep accurate records of every conversation you have. If you have an oral discussion with someone and they consent to your proposed action, follow up with a written confirmation by letter or e-mail.
If possible, serve the notices personally and have the heirs execute a receipt acknowledging that they received the notice.
Don’t get cute. If you receive an objection, stop the sale, and see if you can work it out.
Be proactive! If you know that you are going to need to sell a home in probate. Talk about the sale with the heirs and devisees well in advance. Try to obtain their written consent before you even start looking for a real estate agent. Alternatively, have all of the heirs or devisees waive notice of the proposed action.
3. Waiver of Notice.
As discussed above, a Notice of Proposed Action is generally required if you want to sell a home in probate without prior court approval.
But, you are not required to serve a Notice of Proposed Action on anyone who waives notice.[viii]
The Judicial Council of California has a form called a “Waiver of Notice of Proposed Action.” You can find the form by clicking HERE. If you receive a waiver, you need to file it with the probate court.
If you receive a waiver from every heir and/or devisee, then you can take whatever action you want without court approval or further notice to any of the heirs and/or devisees.
I frequently use waivers if all of the parties are related, and I know that (at least some) of the real property in the estate needs to be sold.
Obtaining written waivers from all parties is the fastest way to sell a home in probate without prior court approval.
Can an Heir or Devisee Revoke the Waiver?
Yes. An heir or devisee can always revoke a prior waiver of notice. To do this, you need to fill out the same waiver of notice form. On page two of that form, there is a section allowing you to revoke a prior waiver of notice.
Once you fill out the “Revocation of Waiver of Notice of Proposed Action” file it with the probate court AND send it to the executor or administrator.
You need to do both because you want to be able to prove that you revoked your waiver before the proposed action. Filing it with the court helps prove when you revoked your waiver. Additionally, you need to inform the executor or administrator because he or she needs to know that they need to send you a Notice of Proposed Action.
How Do I Get Full IAEA Authority to Sell a Home Without Court Approval?
The only way to get full IAEA authority is to ask for it. Seriously.
When you file your petition for probate, there are two boxes you need to check. In the example below, I have highlighted the boxes that you need to check.
In Part 2c, be sure that you check the box for “full” authority.
What If I Already Filed My Petition for Probate and Forgot to Check the IAEA Boxes?
If you already filed your petition for probate, then there is still a way to get IAEA authority.
If the court has not granted the petition for probate, file an amendment to the petition indicating that you want full authority under the IAEA. This will move the hearing out and require you to give notice all over again, but having IAEA authority is worth the trouble.
If the court has already approved and granted your petition, then you will likely need to file an entirely new petition for probate or a new petition for IAEA authority. It will be more difficult because the court may question why you did not request IAEA authority earlier. So be prepared to have answers for the court.
How Do I Know If the Court Gave Me Full Authority Under the IAEA?
Here is an example of what the Order for Probate looks like in California.
If the judge has checked off the box that says, “Full authority is granted to administer the estate under the Independent Administration of Estates Act.” Then you have full IAEA authority and may use the procedures discussed in this article to sell a home in probate without prior court approval.
There are three ways to sell a home in probate without court approval. All three require you to have full authority to administer the estate under the Independent Administration of Estates Act. To avoid problems and potential liabilities, you should be proactive, honest, and open with each heir or devisee of the estate. Probate is a long process, but having full IAEA authority helps avoid delays and make it run a little more smoothly.