There are two aspects of this mystery I feel are important to cover in such a small space and at the risk of interest lost in examining this short and sweet cut into an otherwise mundane dynamic. The first is to provide a refresh explanation of the intent of California Probate. We may all know someone who has told us the story of a family member’s passing and the following evils of numerous relatives roosting like vultures hovering over the will and inheritance. I have personally watched this happen to many Clients, friends and associates who have been afflicted by one or more siblings, third cousins or even hopeful palimony partners claiming untold shares upon the bequeathed estate.
The purpose of the Probate system is of course to prevent these situations from getting out of hand and that fairness and equity of distribution is observed by an independent and non-partial authority (a Judge). This Probate system has a due process which even provides for a court appointed ‘Referee’ to adequately appraise the value of certain components of the estate such as the Real Estate involved. It further requires waiting periods, the postings of ‘Public Notice’ of sale of real property along with an ‘Overbidding’ or ‘Auction’ held at the ‘Court Confirmation’ of sale before the Judge in the Probate Court.
The Independent Administration of Estates Act (I.A.E.A) allows the sale of real property to bypass this ‘Court Confirmation’ process by allowing the Executor to liquidate real property in a manner which appears similar to a traditional sale at less expense in most cases to the Estate. In most of the Probates cases I have handled or that have been brought to my attention, have granted the executor ‘Full Power’ of sale, though most Attorneys automatically file the sale of the real property through the normal court confirmation process. I reserve comment here as to Attorney integrity because most of the Attorneys I have personally engaged with have been awesome and have recognized which cases are most situated for this act or procedure with regard to the realities of Beneficiary circumstance. The matter of the rights of Heirs of the Estate should always be of the first and foremost concern to both the Executor and the Attorney.
Take the case where the Heirs of the Estate are a Brother and Sister, neither have children or dependants, have a solid friendly relationship, a mutually concessive desire to half the proceeds and close out the Estate would benefit by this Estate Act, leveraging time and expense and each other’s overall welfare. The provisions of the Act do contain that adequate notices are delivered to any and all individuals who come forward to claim a piece of the pie and even dispute a sale in progress within the Act.
I believe the reason we do not see this method being more common is both a matter of education and Attorney Risk Management. I at one time had Probate sales included along on my list to specialties in my practice. I teach real estate Agents that when they are brought into a referred situation where an executor is open to being educated in the options the Probate systems provides for, the Executor might have that needed influence to project this alternative at their Attorneys table in the beginning of the process or even refer a Client an Attorney who is open minded to consider whether the case itself may be a proper match for the known beneficiaries or Heirs of the Estate.
In my next article, I will share a court room drama that will shock most real estate Agents and prevent a common, uncommon commissiondectomy. Until then, I am always available for private coaching or consultation in most applications of risk management and loss mitigation.
Copyright © 2010 Bryan Ridgley
Bryan is both a Real Estate and Health and Wellness Coach and Educator. He is currently available for both personal and group coaching and training in Stress Management, Real Estate Loss Mitigation. He currently lives in Los Angeles and Consults in the real estate, health and wellness and legal industries.
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