Choosing Court Confirmation of sale vs. Private sale



Although probate property is often sold in open court in a confirmation hearing, estate representatives may elect to sell without a confirmation hearing. The decision to sell with or without confirmation is generally made by the estate representative in consultation with their lawyer, and is usually based upon the unique facts of the case.

In a court confirmation sale, the personal representative is required to report the sale and petition the court for confirmation of the sale within 30 days of accepting an offer (Cal. Prob. Code § 10308).

Should the personal representative fail to perform these acts in this time period, the purchaser may do so on his or her own behalf (Cal. Prob. Code § 10308(b)). All estate real property sales must be confirmed by the court except for sales of property under the IAEA.

At the sale confirmation hearing, the original sale may be subject to being over-bid by another purchaser (Cal. Prob. Code § 10313). The court will confirm the sale to either the original bidder or to an over-bidder. It will normally approve payment of the brokerage commissions.

Title will pass to the successful buyer only after:

  • The terms of sale have been met
  • The court has confirmed the sale
  • The personal representative has executed a conveyance to the buyer.
    (Cal. Prob. Code § 10314).

Advantages of court confirmation of sale

  • Process is well-documented and held in open court, reducing beneficiary objections
  • Brokerage commissions are transparent to all principals and paid after court approval of the sum
  • Sellers often obtain higher prices through competitive bidding.

Drawbacks of court confirmation of sale

  • Process takes longer (as much as 120 days from offer to close of escrow)
  • Buyer must be “confirmed” by court before buying, and may have to compete with other offers at court hearing
  • Complexities process can be difficult to explain to buyers

A sale without confirmation has the following advantages

  • PLess time between contract and closing, making the sale process similar to traditional real estate transactions
  • Easier for buyers to understand
  • No minimum sale amount

Drawbacks a sale without confirmation

  • The Estate may incur additional costs to obtain permission to sell without confirmation
  • Less transparency in the sale process for principals and beneficiaries