Probate & Trusts

Probate & Trusts

Why Do I Need A Probate Realtor?

When someone suffers a death of a family or friend, there may be legal proceedings that are necessary regarding their property.  These legal proceedings can take time and be complicated.  With the help of a professional to navigate the legal proceedings, you can avoid frustrating problems and delays that you might otherwise have to overcome. As an attorney and a real estate broker, I know there are a lot of questions and issues that need explaining. Being a Realtor accustomed to probate court sales as well as a probate attorney, Marc Grossman brings unparalleled experience to Grossman Real Estate clients.

Your Duties As An Executor?

As an executor of a will, you are required to be honest and impartial.  Your responsibilities will include reading the deceased person’s will and overseeing their estate to ensure that any debts and taxes are paid before making sure to distribute the remaining property to the beneficiaries legally entitled and pursuant to the deceased’s wishes.  The duties that are owed are considered fiduciary duties which is the highest duty the law can impose on one person to act in the interests of another.  An executor has many responsibilities all of which are subject to the scrutiny and jurisdiction of the probating Court.
 
As executor, you need to make initial determinations including what type of legal proceeding is required and who is entitled to notice.  In addition to notifying relatives of a certain degree, there may be notice requirements for government agencies such as Medicare, Social Security or the Post-Office.  You must then collect all the assets while managing any property of the Estate and you become responsible for the payment of the Estate’s debts and taxes for the final year of the decedent’s life. You must determine the rightful heirs, provide appropriate accountings, and ultimately distribute any property remaining after the payment of the Estate’s expenses. As executor, you will be responsible for attaining the necessary documents to properly administer the Estate.  You will need the last will, records of income, bank statements, schedules of assets and debts including medical bills, investment account statements, appraisals and deeds and titles to real estate and possibly personal property.

What Does a Personal Representative Do?

A deceased may name an individual as their personal representative of their Estate.  However, even when a deceased person does so, the appointment of such person requires Court approval and can be challenged by any interested party.  A personal representative’s duties are larger than that of an executor of a will and are largely defined by California Probate Code Section 8404.  The Probate Code also defines a personal representative’s liabilities and permits the Court to require such person to post a bond in order to serve in the position.  
 
In order to make sure a personal representative fully appreciates their liability and duties, the Court will require a personal representative to sign an acknowledgment of receipt of the “Duties and LIabilities of Personal Representative” in Probate Code Section 8404 which states in part that “An attorney is best qualified to advise you about these matters,” to not hold the personal representative at fault.  The scope of a personal representative’s obligations include all of real and personal property assets of the Estate, all of the outstanding taxes and debts of the Estate, and all of the duties owed to the beneficiaries and to the Court including notifications, accountings, inventories, appraisals, expenses and distributions. It becomes the personal representative’s obligation to give the notices prescribed by law to all creditors within four months of their appointment.
 
A personal representative is required to responsibly manage Estate property and investments.  This means money has to be kept in interest bearing and insured accounts, properly manage risks and investments to fulfill their fiduciary obligations to the beneficiaries, and properly manage any real property assets of the estate.  No commingling of accounts is permitted and court approval must be obtained to approve spending and investments. A personal representative has a duty to locate and take possession of all Estate property and determine it’s value before then filing an inventory and appraisal with the Court all within a statutorily prescribed time period.  All changes in title need to be implemented through appropriate deeds, filings and recordings.

Do I Need A Realtor or Lawyer for Probate Court?

The simple answer is no, you do not have to have a Realtor or a Lawyer and can handle the processes yourself if you are able.  There are statutes, regulations, rules, timelines and requirements that have to be navigated and failure to properly do so can have serious consequences.  And whereas other probate realtors can explain some things about the process, they cannot give you legal advice because they are not qualified to do so.  Probate real estate matters have differing requirements regarding the forms, disclosures, pricing criteria and notices that are required. If legal issues or problems arise regarding the sale, the broker is not able to provide legal advice and would advise his clients of this and that they should consult with a real estate attorney.  Similarly, if you have a probate attorney, they may not be able to answer all your questions regarding the real estate transaction and related disclosure requirements that a real estate broker could.   Though no one is required to have either an attorney or a realtor for a real estate transaction, Real Estate Broker and Attorney Marc Grossman can help you in ways that other Realtors simply are not qualified to do.  If you are now, or will be an executor to an estate, you have the burden and responsibilities of dealing with all property, real and personal, and Grossman Real Estate has the experience that matters to be able to get you through it.

Probate Fees For The Personal Representative And Attorney

Basic Probate Fees for the Attorney and Personal Repreasentative
 
The basic minimum fee for a probate attorney is set by Probate Code § 10810 and provides for a fee to be based on a percentage of the value of the probated estate.  The formula from Probate Code §10810 is as follows:
 
  • 4% on the first one hundred thousand dollars ($100,000), plus
  • 3% on the next one hundred thousand dollars ($100,000), plus
  • 2% on the next eight hundred thousand dollars ($800,000), plus
  • 1% on the next nine million dollars ($9,000,000), plus
  • One-half of 1% on the next fifteen million dollars ($15,000,000).
 
For purposes of this section, the value of the estate account for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.  Probate Code §10810(b).  Mortgages and other loans are not taken into consideration in computing the fee base nor are disbursements for debts or expenses. 
 
Both the probate attorney and the personal representative are entitled to this fee and the court has no discretion to reduce the amount of fees.  The exception to this is if the personal representative has unreasonably delayed the closing of the estate or otherwise engaged in mismanagement of the estate they may be surcharged by the Court. Also, any fee that the personal representative makes will  go on their personal tax return as income so they may choose not to take a fee if they will otherwise be receiving property from the estate as an inheritance which is not income.
 
No fees may be paid except by Order of the Court though reimbursement for expenses advanced by the Personal Representative or the Attorney, such as filing fees, publication costs, etc., may be reimbursed without a Court Order.
 
Extraordinary Compensation 
 
California Rule of Court Rule 7.703 allows for the Probate Court to provide additional compensation, known as extraordinary compensation, to both the Personal Representative and the Attorney for providing certain services.  These fees are within the discretion of the Court and require court approval before they may be paid.  In awarding extraordinary fees, the court may consider the amount of statutory compensation when determining a justified and reasonable amount for an extraordinary fee.  
 
Examples of extraordinary services which a personal representative can be compensated for including:
 
  • Selling, leasing, exchanging, financing or forelocising real property or personal property;
  • Carrying on decedent’s business if necessary to preserve the estate or under court order;
  • Preparing tax returns; and
  • Handling audits or litigation connected with tax liabilities of the decedent or the Estate.
 
Examples of extraordinary services with an attorney can be compensated for include:
 
  • Legal services in connection with the sale of property held in the estate;
  • Services to secure a loan to pay estate debts;
  • Litigation undertaken to benefit the estate or to protect its interests;
  • Defense of the personal representative’s account;
  • Defense of a will contested after its admission to probate;
  • Successful defense of a will contested before its admission to probate;
  • Extraordinary efforts to locate estate assets;
  • Litigation in support of attorney’s request for extraordinary compensation, where prior compensation awards are not adequate compensation under all the circumstances;
  • Coordination of ancillary administration; and
  • Accounting for a deceased, incapacitated, or absconded personal representative under Probate Code §10953

How Will a Probate Specialist Help Me?

Everything in a Probate proceeding is subject to the Court’s jurisdiction. In addition to all the laws, statutes, rules, regulations, municipal and disclosure requirements which exist, the Probate Court requires detailed accountings regarding everything about the disposal of any property including the price, proposed terms of sale, disposition of funds and other issues affecting the Estate of the decedent. Issues may arise regarding inspections, repairs, compliance with local codes as well as with any outstanding loans or liens on the property.  At Grossman Real Estate, it is our expectation that our clients will require help with such matters and we are prepared to provide all such assistance necessary to make things as easy as possible for our clients to get  through the process of selling real estate in probate court.   Often we are able to provide for reapirs and corrections before the house sells so our clients do not have to worry about payment for such matters until the time of closing.  There are many ways that having a realtor with probate experience will help you.

What Can a Probate Attorney Do to Help Me?

A probate attorney can help you in many ways.  A probate attorney can make determinations about the validity of a will, can identify and locate property, can guide you through gathering all the necessary paperwork, can prepare all the necessary paperwork required by the Probate Code and other statutes and regulations, can distribute necessary personal property, can through Court proceedings sell any real property of the Estate and most importantly can help you avoid costly mistakes.  If you are an executor, your efforts are rewarded with a statutory fee just like an attorney.  And just like an attorney, if you make any mistakes that cause any losses to the Estate you can be held financially liable for those mistakes.
 
The Attorneys and Brokers at Grossman Real Estate have the experience that matters when it comes to getting you successfully through probate court and getting your estate property sold.  Our consultations are always free.  Also FREE at your request is a comprehensive Comparable Market Analysis of your property.  Call or email to set up a time to meet with Marc Grossman or for your free Comparable Market Analysis. 

The Free Consultation

At Grossman Real Estate, the consultations are always free and without obligation.  Schedule a time to meet with Marc Grossman and he will review your documents and answer all of your legal and real estate questions.  With 25 years experience as a real estate lawyer, Marc has the experience that matters to lead you through the probate process and to sell your home.  At your request, Grossman Real Estate will also provide you with a FREE Comparable Market Analysis for your property. 

Our team of expert Attorneys and Brokers includes the most experienced, trusted and respected professionals in our community.  Our Consultations are always free and your best interest is always our only concern.

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