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  1. #1
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    Dec 2014
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    Memphis TN
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    Default Does a Will Give an Executor the Power to Sell Real Estate

    My question involves estate proceedings in the state of: California.
    Does the executor of a will have the authority to sale real estate that belonged to the deceased person? I've had people tell me in California an executor can not sale real estate without it first going thru probate. I want my executor to be able to sale my house when I die and want to make sure I have things in order to allow him to do so without any issues.
    Thank you

  2. #2
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    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Probate is nothing to be scared of.

  3. #3
    Join Date
    Mar 2013
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    16,796

    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Quote Quoting concerned1234
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    I want my executor to be able to sale my house when I die and want to make sure I have things in order to allow him to do so without any issues.
    He won't be able to act for your estate without court papers appointing him representative of the estate. If you don't want the house to go through probate you will have to create a revocable living trust and deed the property to the trust with instructions to the trustee how you want the property disposed.

    That would avoid probate on the house but not necessarily on other things unless you had beneficiary (pay on death) accounts or accounts in the name of the trust and a pour over will.

  4. #4
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    Default Re: Does a Will Give Executor Power to Sale Real Estate

    How about if I put the deed in my name and my sons name (executor). Would this solve the problem?

  5. #5
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    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Most likely yes especially if he is the sole heir and doesn’t need to sell the property to pay off estate debts or to distribute funds to other heirs.

  6. #6
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    Mar 2013
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    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Quote Quoting concerned1234
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    How about if I put the deed in my name and my sons name (executor). Would this solve the problem?
    Yes, but it's risky. If either of you get into financial difficulties you could lose the house.

    There is another option I had forgotten about momentarily. (Brain fart.)

    A couple of years ago CA authorized transfer on death deeds where the property automatically passes to the beneficiary listed on the deed and it bypasses probate. Just like a beneficiary bank or investment account.

  7. #7
    Join Date
    Jan 2006
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    38,442

    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Quote Quoting concerned1234
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    How about if I put the deed in my name and my sons name (executor). Would this solve the problem?
    Your question doesn’t make a lot of sense in itself.

    For an executor to act, probate must be opened and the executor officially given authority to act. If you actually want your house sold, you can direct that through a will. It’s real simple to include a directive the property is sold and the assets distributed as you direct.

    Can you state what your intent is rather than asking open ended questions?

  8. #8

    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Your question is ill worded as it would depend on the instrument itself as to whether or not a will authorizes the personal represented (not the executor) to sell real property.

    That having been said please be advised that in your state of California the personal representative is authorized to sell real property during the administration of the decedent's estate, with or without complying with the notice requirements contained in the Probate Code, when:

    (1) The will instructs that specific real property is to be sold , or
    (2) The will empowers the personal representative with general authority to sell real property.

    (See: Section 10303 of the California Probate Code)

  9. #9
    Join Date
    Jan 2006
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    38,442

    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Quote Quoting latigo
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    Your question is ill worded as it would depend on the instrument itself as to whether or not a will authorizes the personal represented (not the executor) to sell real property.

    That having been said please be advised that in your state of California the personal representative is authorized to sell real property during the administration of the decedent's estate, with or without complying with the notice requirements contained in the Probate Code, when:

    (1) The will instructs that specific real property is to be sold , or
    (2) The will empowers the personal representative with general authority to sell real property.

    (See: Section 10303 of the California Probate Code)
    cal probate code 6203

    Executor” means both the person so designated in a California statutory will and any other person acting at any time as the executor or administrator under a California statutory will.
    so where does the executor mentioned in cal prop code 6241 come into play?
    The mandatory clauses of the California statutory will form are as follows:
    (a) Intestate Disposition.  If the testator has not made an effective disposition of the residuary estate, the executor shall distribute it to the testator's heirs at law, their identities and respective shares to be determined according to the laws of the State of California in effect on the date of the testator's death relating to intestate succession of property not acquired from a predeceased spouse.

    (b) Powers of Executor.
    (1) In addition to any powers now or hereafter conferred upon executors by law, including all powers granted under the Independent Administration of Estates Act, the executor shall have the power to:
    (A) Sell estate assets at public or private sale, for cash or on credit terms.

    (B) Lease estate assets without restriction as to duration.

    (C) Invest any surplus moneys of the estate in real or personal property, as the executor deems advisable.

    (2) The executor may distribute estate assets otherwise distributable to a minor beneficiary to one of the following:
    (A) The guardian of the minor's person or estate.

    (B) Any adult person with whom the minor resides and who has the care, custody, or control of the minor.

    (C) A custodian of the minor under the Uniform Transfers to Minors Act as designated in the California statutory will form.
    The executor is free of liability and is discharged from any further accountability for distributing assets in compliance with the provisions of this paragraph.

    (3) On any distribution of assets from the estate, the executor shall have the discretion to partition, allot, and distribute the assets in the following manner:
    (A) In kind, including undivided interest in an asset or in any part of it.

    (B) Partly in cash and partly in kind.

    (C) Entirely in cash.
    If a distribution is being made to more than one beneficiary, the executor shall have the discretion to distribute assets among them on a pro rata or non pro rata basis, with the assets valued as of the date of distribution.

    (c) Powers of Guardian.  A guardian of the person nominated in the California statutory will shall have the same authority with respect to the person of the ward as a parent having legal custody of a child would have.  All powers granted to guardians in this paragraph may be exercised without court authorization.
    a) “Personal representative” means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660 , or a person who performs substantially the same function under the law of another jurisdiction governing the person's status.
    from a California law firm’s statement :
    A Personal Representative is the individual responsible for supervising the administration of the estate through the probate court. In California, if there was a will, and a personal representative was named in the will, that person is referred to as an “executor.”[
    if we accept that statement as true, then if there is a will, it is the executor that lords over the probate if there is a will.

  10. #10

    Default Re: Does a Will Give Executor Power to Sale Real Estate

    Quote Quoting MaltbyMark
    View Post
    Probate is nothing to be scared of.
    I am going to assume that by that unrelated, odd ball remark you mean to say that there is nothing difficult or confusing about the laws in the OP's home state of California governing the probate of wills and the administration of decedent's estates.

    If that is so, perhaps you'd care to allay any possible apprehensions regarding the same by summarizing the tens of thousands of separate Divisions, Parts, Sections and Subsections comprising California's Probate Code.

    And maybe differentiate the powers of a personal representative acting with "full authority" as opposed to one acting with"limited authority" and/or proceeding under California's "Independent Administration of Estates Act".

    All in non-frightening layman's language, of course!

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