Later today I am speaking to a group of Realtors at the Lyon Real Estate office in Folsom.  I will be giving them a refresher course on transferring and selling real estate after death. Here’s my outline:

LYON REAL ESTATE – Folsom, CA

February 27, 2013

By: John B. Palley, Esq.

I.       Introduction

1. John B Palley, Attorney at Law
   1. Focused on Estates and Probate since 1994
   2. Estate planning, probate, business, real estate, and related litigation
   3. Offices in Sacramento and Roseville – Practice throughout California
   4. John Palley is a Certified Specialist in Estate Planning, Trust and Probate
   5. Brief refresher on Estate Planning for Real Estate
   6. Real Estate sales in probate administration cases
   7. Real Estate sales in trust administration cases
   8. Some thoughts on pursuing probate and trust listings

B.           Topics today (all related to selling real estate I hope):

II. Brief refresher on Estate Planning for Real Estate

1. Transfer by deeds before death

1.     Tax basis problems

2.     Creditor problems

3.     Out of order death problems

1. Transfer by deeds after death (“Joint tenancy” and CP with ROS)
2. Wills – Simple but some type of probate required when there is real estate
3. Living Trusts – Great solution for most people that own real estate in CA
4. Other Estate Planning (LLC’s, FLPs and QPRTs)
5. Don’t forget about the property tax issues
6. Don’t forget title companies make the law but are not perfect

III.    Real Estate sales in Probate Administration

1.   Different types of probate if property worth less than $150,000
2.   Probate is a formal process  that takes 7 months minimum
3.   The probate code (PC) and the Judge create a formal process
4.   The PC lays out strict guidelines for collecting assets & dealing with creditors
5.   When can you sell property in probate?
6.   Listing Agreements – Probate form recommended but not required – 90 day
7.   Probate Sales Form
8.   Probate Advisory Form
9.   Short Sales in Probate?  (Protecting other estate assets)
10.   IAEA v. Non-IAEA (PC 10452 v. PC 10309)
11.   Selling Upside Down Houses in Probate – PC 10360 et seq.
12.   Notice of Proposed Action and/or Court Confirmation (waiver is possible)
13.   Document all marketing and pricing work very carefully
14.   Standard commissions
15.   Disclosures that are not provided by PR or trustee: The Transfer Disclosure Statement, The Seller’s Questionnaire, Earthquake Hazard Booklet, Earthquake Hazard Questionnaire, the signature on the Natural Hazard Disclosure but the report needs to be provided, and Smoke Detector Compliance.
16.   Disclosure that are required by PR or trustee: Lead Based Disclosure, Data Base Disclosure (Megan’s Law), Water Heater Disclosure and strapping, and disclosing anything that is personally known by the representative.

IV.     Real Estate Sales in Trust Administration

1.    Overall a trust administration is much simpler than a probate but….
2.    Probate code says “may” instead of “shall” for trust administration
3.    Court not involved unless someone gets them involved
4.    Simpler than probate but lots of traps (Notice plus specific gifts)
5.    Duty to inform – Probate Code 16060
6.    When can you sell a house owned by a trust?
7.    Listing Agreements – Probate form recommended but not required – No max
8.   Trust Advisory – CAR Form TA
9.    Short Sales in Trusts?  (Protecting other trust assets)
10.    Selling Upside Down Houses – Convert to probate?
11.    Disclosures (still must disclose known material facts)
12.    Notice of Proposed Action and/or Court Confirmation – 45 day – PC 16500
13.    Document all marketing and pricing work very carefully
14.    Standard commissions
15.    Crossover between trust administration and probate when there is a trust but

house is not titled in trust at death – “Heggstad” petition

V. Pursing Probate and Trust Listings

1. Probate Court records are public (some Courts are relatively accessible on-line)
2. Lots of low ball offers by investors
3. Contact attorney or contact the individual?
4. Make it easy if you contact attorney (Case Name)
5. Customer service is still what wins you clients

VI.   Conclusion

1. Working with a qualified probate attorney will make you look good
2. Title companies are the actual makers of law!
3. Contact me with any questions!

John B. Palley, Esq.

www.californiaprobate.info

THINGS A PROBATE/TRUST LAWYER LIKES TO SEE IN A

REAL PROPERTY SALE

1)        Market Analysis Report in writing

2)        Probate Listing Agreement

3)        Marketing Plan

4)        Keep detailed log of all marketing and offers

5)        Use of Probate Sales forms

6)        Fax/email agreement once fully signed

7)        Title company information to attorney

8)        At least 20 (or 45 – trust) days for escrow unless discussed beforehand

9)        Final closing statement

10)  Plus, everything you would do for a “regular” client!