The Short Answer: Yes, With the Right Authority
Yes. In California, a house or other estate property can be sold while probate is still open. The person the court puts in charge of the estate makes the sale. Depending on the authority the court grants, the sale either goes back to a judge for confirmation or proceeds after written notice to the family, without a confirmation hearing.
Most people facing this question have just learned that a parent's or spouse's house is part of the estate. Meanwhile, a sibling is asking when it can be sold, and the mortgage, insurance and utility bills keep coming. The family wants to know whether the house has to sit empty until the case closes. It usually does not.
There are two paths. The first is a court-supervised sale, which ends in a confirmation hearing. The second is a sale under the Independent Administration of Estates Act. Which path applies depends on what the will says and what authority the court grants. The sections below explain each path, how the house is valued, and the tax questions that come up along the way.
Who Has Authority to Sell Estate Real Property in California
Only one person can sign for the estate: the personal representative. That is the umbrella term California probate law uses for the person the court appoints to manage the estate. An executor is a personal representative named in the will. An administrator is a personal representative the court appoints when there is no will or no executor able to serve. For an administrator, Probate Code section 8461 sets an order of priority. It begins with the surviving spouse or domestic partner, then children, then grandchildren, and the list continues through more distant relatives to the public administrator, creditors and any other person.
Authority starts with the court. According to the California Courts' overview of formal probate, the judge appoints the personal representative at the first hearing. The court then issues letters: letters testamentary for an executor, or letters of administration for an administrator. Probate Code section 10000 allows a personal representative to sell real or personal property of the estate in any of these cases:
- when a sale is needed to pay debts, devises, family allowance, expenses of administration or taxes
- when a sale is to the advantage of the estate and in the best interest of the interested persons
- when the will directs that the property be sold
- when the will gives authority to sell it
How the sale is carried out depends on whether the court granted full or limited authority under the Independent Administration of Estates Act, described below.
A trustee is a different role. A successor trustee is the trustee who takes over after the person who made the trust dies. If the house was in a living trust before the death, the successor trustee usually acts under the trust document, and probate may not be involved at all.
Court-Confirmed Sales: How the Traditional Probate Sale Works
A court-confirmed sale means a judge approves the buyer and the price before the house changes hands. For a family, this step adds time and a public hearing. It also gives assurance that the price was tested in court.
The sale moves through these steps.
Valuation. A probate referee values the house. A probate referee is a court-appointed appraiser who values estate assets other than cash. The appraised value matters because, for a private sale the court confirms, the Probate Code sets a minimum offer measured against that value. The current rule can be confirmed with the probate court or a probate attorney.
Notice of sale. Probate Code section 10300 generally requires that notice of sale be published in a newspaper in the county where the property is located. If there is no such newspaper, notice goes in a newspaper the court directs. Publication must be finished before the sale date stated in the notice for a private sale, or before the auction day for a public auction. The statute lists exceptions, including sales under independent administration.
Confirmation. Probate Code section 10308 generally requires that every sale of real property be reported to the court and confirmed before title passes. This applies even when the will directs or authorizes the sale. If the personal representative does not file the report and petition within 30 days after the sale, the buyer may file them. Notice of the hearing goes to interested persons and is also posted.
Overbidding. At the hearing, another buyer may offer more, and that is called an overbid. Under Probate Code section 10311, the court must accept a written offer made at the hearing if three conditions are met. The offer must be at least 10 percent more on the first $10,000 of the original bid and 5 percent more on the amount above $10,000. It must come from a responsible person. It must comply with the law. Where several offers qualify, the highest one wins. The court may instead decline and order a new sale. Broker commissions are not counted when the court compares bids. Original buyers and overbidders are generally required to show a deposit, and the court sets the details.
Order. Once the judge signs an order confirming the sale, escrow can close.
Sales Under the Independent Administration of Estates Act (IAEA)
The Independent Administration of Estates Act is a California law that lets a personal representative take certain actions without going back to court for approval first, including selling real property. It is not automatic. The court grants it, sometimes because the will asks for it and sometimes because the personal representative requests it in the probate petition.
There are two levels. Full authority allows the personal representative to sell real property without prior court confirmation. Limited authority does not cover a real property sale, so a sale under limited authority goes through the confirmation process described above.
The key step under full authority is the notice of proposed action. This is a written notice to interested persons describing what the personal representative plans to do. Probate Code section 10580 provides that a personal representative granted this authority must give the notice before taking the action without court supervision when the power being used requires it. The personal representative may give the notice even when it is not required. A sale of real property is an action that calls for this notice.
The notice gives heirs and beneficiaries a set period to object before the sale goes ahead. A beneficiary is a person who receives property under a will or trust. An heir is a person who inherits under California law when there is no will. An objection can change how the sale proceeds. A probate attorney can explain what an objection would mean for a particular sale.
Compared with a court-confirmed sale, an IAEA sale has no confirmation hearing and no overbidding, and it often moves faster. The notice obligations still apply.
The Probate Referee and Property Valuation
The California Courts' overview says the personal representative prepares an Inventory and Appraisal and usually contacts a probate referee to value the nonmonetary assets, including the house. Probate referees are generally appointed through the court from a county list. The value is generally set as of the date of death. That date-of-death figure appears on the estate's inventory, and in a court-confirmed sale it is the benchmark for offers.
The same value often matters for income tax. Under 26 U.S.C. § 1014(a), the basis of property acquired from a decedent is generally "the fair market value of the property at the date of the decedent's death." The statute lists exceptions, such as an election to use an alternate valuation date. Basis is the starting figure used to measure gain or loss when property is sold. Because basis is generally the date-of-death value and not what the parent paid decades ago, people call this a "step-up." It can also be a step-down if the value fell. Whether a sale produces taxable gain depends on the sale price compared with that basis and on other facts about the estate. A CPA, an enrolled agent or a tax attorney reviews the basis and gain question for a specific estate. More on taxes on inherited property is available for readers working through that side.
Basis is a separate question from property tax reassessment, which is handled by the county assessor's office and is covered next.
Property Tax and the Sale of Probate Real Estate in California
Property tax follows the deed and the county assessor, not the IRS. When a probate house is sold to an unrelated buyer, that sale is generally a change in ownership, and the assessor generally reassesses the property for the buyer based on the purchase.
A different question arises when an heir keeps the house instead of selling it. For transfers on or after February 16, 2021, Rev. & Tax. Code section 63.2 can exclude a parent-to-child transfer from reassessment, and in some cases a grandparent-to-grandchild transfer. The exclusion is narrow:
- The house must have been the parent's principal residence.
- It must become the child's principal residence within one year of the transfer.
- The child must file for the homeowners' or disabled veterans' exemption within a year.
- A value limit applies, and above that limit part of the value is reassessed.
- A claim must be filed with the assessor.
The claim is generally due within three years after the transfer, or before the property is transferred to a third party, or before the eligible transferee stops living in the house, whichever is earliest. A claim also counts as timely if it is filed within six months after a notice of supplemental or escape assessment is mailed. The value limit is adjusted over time, and the county assessor's office publishes the current figure and handles reassessment and exclusion questions.
If the estate sells the house to a third party during probate, no parent-child exclusion carries over to that buyer.
When a Probate Sale May Not Be Required
Sometimes the house was never part of the probate estate, so a "probate sale" is not the right frame. The cases below are possibilities to identify, not a choice this page makes for any family.
Joint tenancy. When the house was held in joint tenancy, the surviving joint tenant generally takes title by recording an affidavit of death together with a certified copy of the death certificate. Probate Code section 13050 excludes joint tenancy property when the size of the estate is measured for the simplified procedures.
Community property with right of survivorship. A spouse holding title this way generally takes the property by survivorship in a similar way. For other property passing to a surviving spouse, Probate Code section 13650 allows a petition asking the court to find that administration is not necessary.
Living trust. Property in a revocable trust is also excluded under Probate Code section 13050. The successor trustee generally sells it under the trust's terms, without the probate court.
Simplified procedures. For lower-value estates, the Judicial Council offers the affidavit for real property of small value and the petition to determine succession to the decedent's primary residence. Their dollar limits are adjusted over time, and the California Courts self-help pages publish the current figures.
A broader look at property that may transfer outside probate covers beneficiary designations and the other paths.
Disclosures and Practical Considerations for a Probate Sale
Personal representatives often did not live in the house and may know little about its leaks, permits or repairs. California generally requires a seller to disclose known material defects. A personal representative's disclosure obligations can differ from those of an owner who lived there, because the personal representative may have limited knowledge of the property's condition. A real estate attorney or the probate attorney can say which disclosures apply to a particular sale.
As a practical matter, buyers in a court-confirmed sale more often take the house in its current condition than buyers in an ordinary sale. A court-confirmed sale also generally takes longer, because publication, a hearing date and a confirmation order all come before escrow closes. An IAEA sale can close much like an ordinary sale once the notice period passes without objection. Readers who want to know how probate affects real estate more broadly can find authority, valuation and title covered there.
Families usually weigh two broad categories of sale. One is listing with a licensed real estate agent, which can reach more buyers but usually involves preparation and showings. The other is a cash sale to an investor. A cash sale can reduce repairs, showings, financing uncertainty and time, though the trade-offs differ from one estate to another. Either way, the confirmation or notice rules above still apply. A separate guide on whether an executor can sell estate property addresses the authority question on its own.
