Probate and Divorce



Probate is the legal process for transferring assets (e.g., houses, cars, stocks and bonds, boats, etc.) from a deceased person’s name to his or her estate so they can be sold or distributed to the heirs. The probate court oversees the settlement of an estate. If there is a will, the probate court judge validates the terms of the will including the appointment of the Personal Representative who is called the Executor and is charged with administering the estate. If there is no will, the court will appoint a Personal Representative who is called the Administrator, who is responsible for administering the estate. Probate takes place in the county of the decedent’s residence.

Selling real estate through probate court involves a highly regulated process, specialized documentation, rigid deadlines, and the court’s oversight. A number of additional parties beyond the real estate agent or agents is involved in a probate real estate transaction: Executor or Administrator, attorney for the estate, court personnel including the judge, the heirs, and in many cases the estate CPA. Probate also entails specific disclosure documents and requirements and purchase contracts that are different from those used in other real estate transactions.

Below is a summary of the typical steps involved in a probate transaction:


Appointment of the Executor or Administrator of the estate. If there is a will, in most cases, the decedent has named an Executor who is designated to oversee the settlement of the estate including the distribution of assets. If no Executor is named or if the named Executor is unable or unwilling to serve, or if there is no will, the court appoints an Administrator to perform these functions. The Executor or Administrator is the individual who has the authority to list, market, and sell the property. The Executor once appointed can list the property for sale, but the sale cannot close until the Letter of Testamentary has been issued by the court, which grants the Executor the authority to transfer title of the real property


If qualified under the Independent Administration of Estates Act (IAEA), the Executor determines the list price for the real property, typically taking into account input from a real estate agent as well as the needs and priorities of the estate. Sometimes a Probate Referee is asked to provide a value or is required in cases of limited authority. For those listings involving court supervision, accepted offers must be 90% or more of the Probate Referee’s appraised value. This is one area in which the real estate agent should be closely involved so that the sale is not hampered by an outdated and/or off-target appraised value.


The property is then listed for sale and marketed to the public in such a way so as to attract the best offer that meets the objectives of the estate. When an offer or offers come in, the real estate agent helps the Executor/Administrator in negotiating terms that best meet the needs of the estate.


Once the property has an accepted offer, the Executor mails a Notice of Proposed Action to all heirs, providing the terms of the proposed sale. The heirs have 15 days to review the notice and assert any objections. If there are no objections, the sale may proceed without a court hearing.


If the Executor/Administrator does not have full independent powers under IAEA, or if one of the heirs objects to the Notice of Proposed Action, the Executor/administrator must publish a notice of the sale in a generally distributed local newspaper (unless the will stipulates otherwise).


The attorney for the estate then applies for a court date for the confirmation hearing, at which time the sale will be executed. The court date is generally within 30 to 45 days of the application filing date. A copy of the application and details concerning the sale are mailed to all interested parties.


Even after the court date has been set, the real estate broker may continue to show and market the property in an effort to secure an “over-bidder” thereby potentially increasing the ultimate sales price.


During the court confirmation hearing, the original contract price may be overbid by another buyer, in which case the overbidding party must appear at the hearing with a cashier’s check in hand in an amount totaling at least 10% of the final sales price. The minimum overbid price is 5% +$500 above the original contract price.


If there is more than one overbidder, the highest bid prevails. The winning bidder gives their cashier’s check to the Executor/Administrator and escrow is opened. Escrow closes approximately 30 to 45 days from the date of the court hearing.

As alluded to above, the process of probate differs considerably depending on whether or not the probate qualifies under the California Independent Administration of Estates Act (more commonly called the Independent Powers Act), which usually allows the Executor of a probate estate to sell real estate without court approval or the overbid process.

The probate court grants the Executor of a probate estate one of three levels of powers depending on the will, if there is one. The three powers are:


Every single proposed action by an Executor requires a court hearing for approval. Decades ago, virtually all probates were handled in this fashion, but is very seldom used any more. Courts realized when 99%+ of proposed actions by Executors go unchallenged, so why have a court hearing if no one objects? The result was the Independent Powers Act, which allows the Executor to take certain actions without court approval, unless the heirs object.

LIMITED POWERS under the Independent Powers Act

Gives the Executor the right to do anything except sell real estate.

FULL POWERS under the Independent Powers Act

Gives the Executor the right to do anything including the right to sell real estate. Wills may stipulate whether the Executor is to be granted full authority or limited authority and whether or not the Executor must post a bond,  If the will states full authority/no bond, the Executor should have full power; if it states full authority / bond required, the Executor must post a bond in order to have full powers, otherwise, he or she would have limited powers.







Appoint/Confirm Executor/Administrator Appoint/Confirm Executor/Administrator
Court-Appointed Referee Provides Appraisal List Property / Market Property / Get Highest Bid
If Probate Referee’s Value is too High or too Low, it may be Updated/Corrected and Re-Filed Mail “Notice of Proposed Action” to Heirs, who Have 15 Days to Object
Bids must be within 90% of Probate Referee’s Appraised Value If No One Objects, Close the Sale per the Terms of the Purchase Agreement
Accept Offer Subject to Court Confirmation / Overbid Process
Wait another 30-45 Days to Schedule Hearing
A Second Round of “Court Overbidding” takes place after Getting Highest and Best Market Offer
Minimum Opening Bid Must Be 5% + $500 more than the Original Contract
10% of Final Price is Required as Cashier’s Check
Escrow to Close about 30-45 Days after Hearing

Many experts believe that going through the court confirmation process required of Executors / Administrators having Limited Powers actually diminishes market value rather than accomplishes the goal of protecting and increasing value, arguing the court confirmation / overbid process:

  • Scares away many potential buyers
  • Attracts bottom feeders
  • Produces lower offers due to the increased complexity, uncertainty, and risk

As the chart above demonstrates, the process of selling real property in probate is far less cumbersome under FULL POWERS than it is under LIMITED POWERS. While a court order confirming a proposed sale arguably gives the Executor more protection than written consent by all of the heirs, if an heir has consented to a sale, it will be difficult for him to complain later. Ultimately, it is up to the Executor/Administrator in consultation with the attorney for the estate to decide to what extent he or she wishes to exercise their FULL POWERS authority (if such authority is granted) so that the best interests of the estate are achieved. Of course, if FULL POWERS are not granted, he or she has no choice but to comply with the LIMITED POWERS process.


Divorces are rarely easy, and very few end with zero disputes over major assets. For most relationships, the biggest shared assets are related to real estate. Whether the marital home or investment property, those going through divorce often want to know, “what happens to real estate in a divorce?”

Date Property Purchased and Use During Marriage

The biggest part of the analysis for what happens to real estate after a divorce is when the property was purchased. If one of the parties purchased the property before the marriage, it might be considered a pre-marital asset that belongs exclusively to that spouse. However, if the property served as the home in which the couple lived while married, or as a source of marital income, the property may have converted to a marital asset subject to equitable distribution between both spouses.

In most states, it is possible to own property before a marriage and still retain exclusive ownership of that property. This is true even in the absence of an antenuptial (or “prenuptial”) agreement. The trick is that the property must remain exclusively a benefit of the owner spouse. If that spouse begins sharing the use and enjoyment of the property (or proceeds derived from the property, such as depositing them in a joint bank account), the solitary ownership interest may dissolve.

Property purchased after a marriage, or which is used for marital purposes (like serving as the house in which the couple lived) is generally an asset of both partners and the interest in the property must split in a fair manner (i.e., “equitably”) between the parties.

How to Deal With a House Without a Fight

If the two parties to a divorce are still civil and want a clean, quick, and simple break, selling a property is a great idea. The only issue will be how the proceeds are divided between the spouses and, unfortunately, this issue alone can become quite contentious. If the parties can agree beforehand, they may avoid considerable headaches when the property sells. Alternatively, having the attorneys negotiate or hiring a mediator may be other ways to determine an appropriate distribution of the cash from the sale. If all else fails, the judge presiding over the case will make a determination based on fact and law, but that removes the parties’ ability to come to a better arrangement between themselves and could end up leaving both parties unhappy with the outcome.

A common philosophy in determining who should get how much out of a home or other property sale is to look at how much each spouse contributed to the property. For example, if one party contributed 60 percent of the cash at the time of purchase, and later paid 40 percent toward the payments on the loan, that would be their relative contribution to the property. That can lead to a quantifiable figure that may be compared to a similar number produced by the other spouse. When the parties figure out the relative percentage of the total value each contributed, they can divide the proceeds of the sale accordingly.

What Happens if Both Parties Want the House?

When former spouses want to keep a property, whether out of financial need or spite, things can get much more tricky. If the other party is willing to walk away from ownership, the one who stays can simply “buy out” the other’s interest in the property. This also requires the departing spouse to be removed from any deeds, mortgages, or other rights or obligations on the property.

On the other hand, if both parties want to retain possession of the property, the matter must be decided by a judge. Often, the ownership will be granted to one party at the cost of certain other assets that party may have wished to retain. That way, neither party gets more out of the divorce than the other. However, this also means sacrificing other things which the spouse that keeps the property might have wished to retain. Thus, it is usually best, even under contentious circumstances, to attempt to resolve disputes over property ownership amicably rather than by going through court.

What Happens if One of the Parties Wants to Purchase a Replacement Home?

When one of the Parties wants to repurchase a home before the divorce is final, it will require the other party to quitclaim any interest in the new party.  If the other party is unwilling to cooperate, it could prevent the purchasing party from obtaining loan financing on the new property until after the divorce is final or compromise ownership if purchasing with cash.

Legal Assistance

One thing should be clear: the process of distributing real property between former spouses can be complicated and fraught with peril. For that reason, it would be wise to hire a competent, experienced attorney to help with negotiating an appropriate resolution or taking the case to court to best protect your interests.  Our Team works closely with all parties in a Divorce (Husband, Wife and Attorney(s).  We remain neutral, not taking sides and treat our clients with dignity and respect.  Our goal is to make the transaction as smooth as possible so both parties can move forward with their lives.

Contact us by E-mail at or call us at 949.305.0121 for a Free Consultation regarding the sale of real estate in the Probate Process.