As a San Jose Probate Real Estate Agent I have seen many things happens in transactions, but this one was a first for me.
I listed a cute home in Alum Rock for a family whose parents had both recently passed. The parents left a will but they did not have a trust. Since the estate was not in a trust the assets of the estate need to go through Probate before they can be distributed to the children of the couple who passed.
One child was named Personal Representative of the estate. That is, since the parents are not here to distribute their estate, a personal representative is appointed by the Probate Court to make sure the debts are paid, the taxes are filed, the assets are sold, and the money is distributed in the way the parents specified they wanted it to be done in their will. If there was no will then the estate would be distributed the way the State of California has determined it should be done when there is no will.
When the oldest son was named Personal Representative it also allowed him to sell his parent's house under the Independent Administrations of Estates Act. That means he has the right to accept an offer on the home, and as long as none of the other heirs object the house can be sold without further court approval or an overbid auction at court. If the Personal Representative does not have full authority to sell a home then once an offer is accepted it goes to court where another buyer can try to purchase the home by over bidding the first accepted offer.
I listed the home, got a great offer, and escrow was opened. Everything was fine until the underwriter saw the file. He said he needed proof the son was authorized to the sell the house. We gave him the Letters of Testamentary which say the son is the Personal Representative for the estate and has full authority to sell the house. The underwriter said that is not good enough. There was nothing on the Letters that specifically said he could sell the probate house in Alum Rock. The title report says the house belongs to the parents. The Letters say the son has the right to act as the parents. In every Probate sale I have done in the last 18 years this has been enough for the underwriter. In every Probate sale my escrow officers has done in the last 30 years this was enough for the underwriter. But not this one.
I solved the problem by getting the original Petition to Administer the estate from the court files. this document has the name of the Personal Representative and the address of the property so that worked. Just another San Jose Probate challenge met.
If you have any questions about buying or selling homes in Probate please feel free to contact me.
Marcy Moyer
marcy@marcymoyer.com
BRE 01191194
650-619-9285
