Not all Real Estate Transactions are Equal.
Not all Real Estate Agents are Equal.
Real Estate Sales aren’t always planned. Circumstances change, relationships change, friends and family can pass unexpectedly. When this happens, you need an experienced Real Estate Agent that can help and guide you through the process.
Not only can we help with your Real Estate Sale, we can also be a resource to put you in contact with experienced CPAs, Financial Planners, and Legal Counsel to further assist you where needed.
Losing someone close can be difficult and helping in the sale of their home and assets can be both stressful and time consuming. We are here to help. Not only are we here to support you and your family during this process, we are also a resource for handling the title transfer and transaction from start to finish. We are also available to assist with any needed clearing, cleaning, and estate sales as well as the arrangement and coordination of any required repairs or corrections needed to complete the sale.
Understanding the process and timelines are critical. First, we need to ascertain what kind of sale is ahead of us and make sure we have the documentation prepared and cooperation of all involved parties. Once we have ascertained the type of sale, the assistance of a Trust Attorney, CPA, and even a Financial Planner should be involved to give legal, tax, and financial advice. We can provide recommendations for anyone needed if you do not already have someone in mind.
In a Trust Sale, the owner has likely passed away and the home was placed in a Revocable or Irrevocable Trust prior to the time of their passing. Since the Trust is a legal entity, it can hold title for the benefit of one or more persons or entities. A copy of the complete Trust is required as well as an original copy of the previous owner’s death certificate (you may need several copies of this).
Directions and instructions are detailed in a Trust and a Successor Trustee(s) or Administrator(s) is named to carry out those wishes. This person(s) is called a fiduciary and is responsible for collecting the assets and paying the debts in such a way that protects the best interests of conservatee, minor, or the heirs of the deceased (beneficiaries). If a Successor Trustee is not able to fulfill their duties, the next stated Successor shall be assigned. POAs are usually not allowed or recognized by title companies in a Trust Sale.
Trust Sales are normally still considered a regular sale in terms of escrow timelines and can usually be closed within a standard 30 day purchase contract. The significant difference is in the disclosure packet required. As a Successor Trustee, this person(s) usually has limited information and history of the property to share so disclosures may be limited to avoid liability. In this case, it puts even more responsibility on the buyer(s) to perform the inspections and do their due diligence.
In a Trust Sale, your CPA will probably also need a value of the property at the time of the owner’s passing for tax purposes, this is sometimes called a “Death Evaluation”. If needed, we will provide this at no additional charge.
Not all assets need to go through the probate process in order to pass to the heirs. 401K accounts, IRAs, life insurance and other types of retirement accounts usually do not need to be probated because these types of assets have designated beneficiaries. Likewise, real estate properties that are held as joint tenancy, community property with right of survivorship do not need to be probated. Obviously, estates held in a Trust or Will are not probated as well. When a Trust or Will is not available or was never formed, a Probate Sale will probably be required. Probate is the court-supervised administration of a decedent’s estate. The probate proceeding involves “proving the will” (if there is a will), appointing the personal representative, determining the decedent’s assets that are subject to probate, paying outstanding debts and disbursing funds to the beneficiaries. In some cases, the decedent’s estate includes real property that must be sold under the court’s supervision. Probate Sales fall into two categories, Court and Non-Court Confirmation sales.
Non-court Confirmation Probate
If the Probate Sale does not require Court Confirmation, the fiduciary, also called an Administrator, has been granted full administrative powers under the Independent Administration of Estates Act (IAEA). Also, if the property is held in a non-court supervised trust, court confirmation may not be required. Escrow timelines are similar to a standard Trust Sale and limited disclosures still apply. . Once an offer is accepted, the estate’s attorney mails out a Notice of Proposed Action stating the terms of the proposed sale to all the heirs. The heirs then have 15 days to object to the sale. If there is no objection within 15 days, the sale goes through without any court hearing required. (Regardless of the details of the probate transaction, sellers are strongly encouraged to work with a professional probate attorney to protect the estate’s best interests.) Being an administrator can be a compensated position depending on what has been agreed to by the heirs or by the court.
Court Confirmation Probate
If the Probate Sale does require Court Confirmation, the process can be lengthy and can easily take up to a year to complete. In this case, a state judge appoints the Personal Representative. The Personal Representative collects all the assets, pays all the valid debts from the assets collected and distributes the money to the rightful heirs.
Here are links that will assist us in the process.
Sonoma County Probate – www.sonoma.courts.ca.gov/divisions/probate
Marin County Probate – www.marincourt.org/probate.htm
SF County Probate – www.sfsuperiorcourt.org/divisions/probate
Napa County Probate – www.napa.courts.ca.gov/divisions/civil
Mendocino County Probate – www.mendocino.courts.ca.gov/divisions/probate-division
Divorce and Separation Sales
When a relationship ends, it can be painful. Unfortunately, hard and difficult decisions may have to be made. There can be children and pets involved, there can be bank accounts, vehicles and personal property to be assigned, and of course – there can also be real property to be sold.
If one of the parties is unable or unwilling to buy or refinance the other party out, selling the property is usually the next logical step. Representing both parties in this type of sale is very common and we treat each side’s conversations separate and private unless required for the sale or as a disclosure to the court or perspective attorneys. Our fiduciary duty to protect each party in the list individually and collectively to make the process as smooth as possible for all involved.
(Courtesy of Cornell Law School and the Judicial Counsel of California)
A conservatorship is a form of legal guardianship of an adult. Under this structure, the conservator, has legal authority over certain aspects of the conservatee’s life. This can range from a limited conservatorship, which addresses only specific matters such as health or finances, to a full conservatorship, in which you essentially have the same rights and responsibilities that a parent does over a child. A conservatorship can ensure that a loved one’s personal finances and healthcare issues are properly handled. This is done only after that person is no longer able to make good decisions about such matters. It’s best to discuss that option with the potential conservatee before a conservatorship becomes necessary.
Power of Attorney (POA) Sales
A POA can accomplish many of the same things as a conservatorship. It gives someone the authority to make legally binding decisions on another person’s behalf. The scope of POA can be as narrow or as broad as you choose. Unlike a conservatorship, however, it is exercised at the discretion of the individual. This means that someone can grant power of attorney to whomever they wish and can revoke it whenever they wish. This is often an option exercised by individuals who want to prepare for their own incapacitation. They may draft a POA form empowering someone to make financial, healthcare or other decisions on their behalf. Provided this occurs when the individual was of sound mind, this will supersede any conservatorship. A POA is not valid if drawn up and signed by a person already incapacitated. Most POAs can be drafted and notarized by an attorney or title/escrow company.
We are here for you from start to finish and in addition to being able to provide referrals for CPAs, Financial Advisors, and Legal Counselors, we can also provide resources for Estate Sale Companies for personal property, Interior and Exterior Clean Out Services, Debris and Junk Hauling, as well a multitude of Repair Contractors if needed. In many cases, we can cover the expense of some of these services and get reimbursed at the close of escrow.