ProbCase-Flash Flashcards
1
Q
Contest Of Will
Probate Code Section 8220
A
Unless there is a contest of a will:
(a) The will may be proved on the evidence of one of the subscribing witnesses only, if the evidence shows that the will was executed in all particulars as prescribed by law.
(b) Evidence of execution of a will may be received by an affidavit of a subscribing witness to which there is attached a photographic copy of the will, or by an affidavit in the original will that includes or incorporates the attestation clause.
(c) If no subscribing witness resides in the county, but the deposition of a witness can be taken elsewhere, the court may direct the deposition to be taken. On the examination, the court may authorize a photographic copy of the will to be made and presented to the witness, and the witness may be asked the same questions with respect to the photographic copy as if the original will were present.
2
Q
Contest Of Will
Probate Code Section 8221§
A
If no subscribing witness is available as a witness within the meaning of Section 240 of the Evidence Code, the court may, if the will on its face conforms to all requirements of law, permit proof of the will by proof of the handwriting of the testator and one of the following: (a) Proof of the handwriting of any one subscribing witness. (b) Receipt in evidence of one of the following documents reciting facts showing due execution of the will: (1) A writing in the will bearing the signatures of all subscribing witnesses. (2) An affidavit of a person with personal knowledge of the circumstances of the execution.
3
Q
Contest Of Will
Probate Code Section 8222
A
A holographic will may be proved in the same manner as other writings.
4
Q
Contest Of Will
Probate Code Section 8223
A
The petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate.
5
Q
Contest Of Will
Probate Code Section 8224
A
The testimony of each witness in a proceeding concerning the execution or provisions of a will, the testamentary capacity of the decedent, and other issues of fact, may be reduced to writing, signed by the witness, and filed, whether or not the will is contested. The testimony so preserved, or an official reporter’s transcript of the testimony, is admissible in evidence in any subsequent proceeding concerning the will if the witness has become unavailable as a witness within the meaning of Section 240 of the Evidence Code.
6
Q
Contest Of Will
Probate Code Section 8225
A
When the court admits a will to probate, that fact shall be recorded in the minutes by the clerk and the will shall be filed.
7
Q
Contest Of Will
Probate Code Section 8226
A
(a) If no person contests the validity of a will or petitions for revocation of probate of the will within the time provided in this chapter, admission of the will to probate is conclusive, subject to Section 8007. (b) Subject to subdivision (c), a will may be admitted to probate notwithstanding prior admission to probate of another will or prior distribution of property in the proceeding. The will may not affect property previously distributed, but the court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will. (c) If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods: (1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate. (2) Sixty days after the proponent of the will first obtains knowledge of the will.
8
Q
Probate Code Section 8420
A
The person named as executor in the decedent’s will has the right to appointment as personal representative.
9
Q
Probate Code Section 8421
A
If a person is not named as executor in a will but it appears by the terms of the will that the testator intended to commit the execution of the will and the administration of the estate to the person, the person is entitled to appointment as personal representative in the same manner as if named as executor.
10
Q
Probate Code Section 8422
A
(a) The testator may by will confer on a person the power to designate an executor or coexecutor, or successor executor or coexecutor. The will may provide that the persons so designated may serve without bond. (b) A designation shall be in writing and filed with the court. Unless the will provides otherwise, if there are two or more holders of the power to designate, the designation shall be unanimous, unless one of the holders of the power is unable or unwilling to act, in which case the remaining holder or holders may exercise the power. (c) Except as provided in this section, an executor does not have authority to name a coexecutor, or a successor executor or coexecutor.
11
Q
Probate Code Section 8423
A
If the executor named in the will is a trust company that has sold its business and assets to, has consolidated or merged with, or is in any manner provided by law succeeded by, another trust company, the court may, and to the extent required by the Banking Law (Division 1 (commencing with Section 99) of the Financial Code) shall, appoint the successor trust company as executor.
12
Q
Probate Code Section 8424
A
(a) If a person named as executor is under the age of majority and there is another person named as executor, the other person may be appointed and may administer the estate until the majority of the minor, who may then be appointed as coexecutor. (b) If a person named as executor is under the age of majority and there is no other person named as executor, another person may be appointed as personal representative, but the court may revoke the appointment on the majority of the minor, who may then be appointed as executor.
13
Q
Probate Code Section 8425
A
If the court does not appoint all the persons named in the will as executors, those appointed have the same authority to act in every respect as all would have if appointed.
14
Q
Probate Code Section 8440
A
An administrator with the will annexed shall be appointed as personal representative if no executor is named in the will or if the sole executor or all the executors named in the will have waived the right to appointment or are for any reason unwilling or unable to act.
15
Q
Probate Code Section 8441
A
(a) Except as provided in subdivision (b), persons and their nominees are entitled to appointment as administrator with the will annexed in the same order of priority as for appointment of an administrator. (b) A person who takes under the will has priority over a person who does not, but the court in its discretion may give priority to a person who does not take under the will if the person is entitled to a statutory interest that is a substantially greater portion of the estate than the devise to the person who takes under the will and the priority appears appropriate under the circumstances. A person who takes more than 50 percent of the value of the estate under the will or the person’s nominee, or the nominee of several persons who together take more than 50 percent of the value of the estate under the will, has priority over other persons who take under the will.
16
Q
Probate Code Section 8442
A
(a) Subject to subdivision (b), an administrator with the will annexed has the same authority over the decedent’s estate as an executor named in the will would have. (b) If the will confers a discretionary power or authority on an executor that is not conferred by law and the will does not extend the power or authority to other personal representatives, the power or authority shall not be deemed to be conferred on an administrator with the will annexed, but the court in its discretion may authorize the exercise of the power or authority.
17
Q
Probate Code Section 8460
A
(a) If the decedent dies intestate, the court shall appoint an administrator as personal representative. (b) The court may appoint one or more persons as administrator.
18
Q
Probate Code Section 8461
A
Subject to the provisions of this article, a person in the following relation to the decedent is entitled to appointment as administrator in the following order of priority: (a) Surviving spouse or domestic partner as defined in Section 37. (b) Children. (c) Grandchildren. (d) Other issue. (e) Parents. (f) Brothers and sisters. (g) Issue of brothers and sisters. (h) Grandparents. (i) Issue of grandparents. (j) Children of a predeceased spouse or domestic partner. (k) Other issue of a predeceased spouse or domestic partner. (l) Other next of kin. (m) Parents of a predeceased spouse or domestic partner. (n) Issue of parents of a predeceased spouse or domestic partner. (o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person. (p) Public administrator. (q) Creditors. (r) Any other person.
19
Q
Probate Code Section 8462
A
The surviving spouse or domestic partner of the decedent, a relative of the decedent, or a relative of a predeceased spouse or domestic partner of the decedent, has priority under Section 8461 only if one of the following conditions is satisfied: (a) The surviving spouse, domestic partner, or relative is entitled to succeed to all or part of the estate. (b) The surviving spouse, domestic partner, or relative either takes under the will of, or is entitled to succeed to all or part of the estate of, another deceased person who is entitled to succeed to all or part of the estate of the decedent.
20
Q
Probate Code Section 8463
A
If the surviving spouse is a party to an action for separate maintenance, annulment, or dissolution of the marriage of the decedent and the surviving spouse, and was living apart from the decedent on the date of the decedent’s death, the surviving spouse has priority next after brothers and sisters and not the priority prescribed in Section 8461.
21
Q
Probate Code Section 8464
A
If a person otherwise entitled to appointment as administrator is a person under the age of majority or a person for whom a guardian or conservator of the estate has been appointed, the court in its discretion may appoint the guardian or conservator or another person entitled to appointment.
22
Q
Probate Code Section 8465
A
(a) The court may appoint as administrator a person nominated by a person otherwise entitled to appointment or by the guardian or conservator of the estate of a person otherwise entitled to appointment. The nomination shall be made in writing and filed with the court. (b) If a person making a nomination for appointment of an administrator is the surviving spouse or domestic partner, child, grandchild, other issue, parent, brother or sister, or grandparent of the decedent, the nominee has priority next after those in the class of the person making the nomination. (c) If a person making a nomination for appointment of an administrator is other than a person described in subdivision (b), the court in its discretion may appoint either the nominee or a person of a class lower in priority to that of the person making the nomination, but other persons of the class of the person making the nomination have priority over the nominee.
23
Q
Probate Code Section 8466
A
If a person whose only priority is that of a creditor claims appointment as administrator, the court in its discretion may deny the appointment and appoint another person.
24
Q
Probate Code Section 8467
A
If several persons have equal priority for appointment as administrator, the court may appoint one or more of them, or if such persons are unable to agree, the court may appoint the public administrator or a disinterested person in the same or the next lower class of priority as the persons who are unable to agree.
25
Probate Code Section 8468
If persons having priority fail to claim appointment as administrator, the court may appoint any person who claims appointment.
26
Probate Code Section 8469
(a) For good cause, the court may allow the priority given by Section 8461 to a conservator or guardian of the estate of the decedent serving in that capacity at the time of death that has not filed a first account, or that is acting as guardian or conservator for another person, or both. (b) If the petition for appointment as administrator requests the court to allow the priority permitted by subdivision (a), the petitioner shall, in addition to the notice otherwise required by statute, serve notice of the hearing by mail or personal delivery on the public administrator.
27
Probate Code Section 8570
As used in this article, "nonresident personal representative" means a nonresident of this state appointed as personal representative, or a resident of this state appointed as personal representative who later removes from and resides without this state.
28
Probate Code Section 8571
Notwithstanding any other provision of this chapter and notwithstanding a waiver of a bond, the court in its discretion may require a nonresident personal representative to give a bond in an amount determined by the court.
29
Probate Code Section 8572
(a) Acceptance of appointment by a nonresident personal representative is equivalent to and constitutes an irrevocable and binding appointment by the nonresident personal representative of the Secretary of State to be the attorney of the personal representative for the purpose of this article. The appointment of the nonresident personal representative also applies to any personal representative of a deceased nonresident personal representative. (b) All lawful processes, and notices of motion under Section 377.41 of the Code of Civil Procedure, in an action or proceeding against the nonresident personal representative with respect to the estate or founded on or arising out of the acts or omissions of the nonresident personal representative in that capacity may be served on the Secretary of State as the attorney for service of the nonresident personal representative.
30
Probate Code Section 8573
A nonresident personal representative shall sign and file with the court a statement of the permanent address of the nonresident personal representative. If the permanent address is changed, the nonresident personal representative shall promptly file in the same manner a statement of the change of address.
31
Probate Code Section 8574
(a) Service of process or notice of a motion under Section 377.41 of the Code of Civil Procedure in any action or proceeding against the nonresident personal representative shall be made by delivering to and leaving with the Secretary of State two copies of the summons and complaint or notice of motion and either of the following: (1) A copy of the statement by the nonresident personal representative under Section 8573. (2) If the nonresident personal representative has not filed a statement under Section 8573, a copy of the letters issued to the nonresident personal representative together with a written statement signed by the party or attorney of the party seeking service that sets forth an address for use by the Secretary of State. (b) The Secretary of State shall promptly mail by registered mail one copy of the summons and complaint or notice of motion to the nonresident personal representative at the address shown on the statement delivered to the Secretary of State. (c) Personal service of process, or notice of motion, on the nonresident personal representative wherever found shall be the equivalent of service as provided in this section.
32
Probate Code Section 8575
Proof of compliance with Section 8574 shall be made in the following manner: (a) In the event of service by mail, by certificate of the Secretary of State, under official seal, showing the mailing. The certificate shall be filed with the court from which process issued. (b) In the event of personal service outside this state, by the return of any duly constituted public officer qualified to serve like process, or notice of motion, of and in the jurisdiction where the nonresident personal representative is found, showing the service to have been made. The return shall be attached to the original summons, or notice of motion, and filed with the court from which process issued.
33
Probate Code Section 8576
(a) Except as provided in this section, service made under Section 8574 has the same legal force and validity as if made personally in this state. (b) A nonresident personal representative served under Section 8574 may appear and answer the complaint within 30 days from the date of service. (c) Notice of motion shall be served on a nonresident personal representative under Section 8574 not less than 30 days before the date of the hearing on the motion.
34
Probate Code Section 8577
(a) Failure of a nonresident personal representative to comply with Section 8573 is cause for removal from office. (b) Nothing in this section limits the liability of, or the availability of any other remedy against, a nonresident personal representative who is removed from office under this section.
35
Probate Code Section 10000
Subject to the limitations, conditions, and requirements of this chapter, the personal representative may sell real or personal property of the estate in any of the following cases: (a) Where the sale is necessary to pay debts, devises, family allowance, expenses of administration, or taxes. (b) Where the sale is to the advantage of the estate and in the best interest of the interested persons. (c) Where the property is directed by the will to be sold. (d) Where authority is given in the will to sell the property.
36
Probate Code Section 10001
(a) If the personal representative neglects or refuses to sell the property, any interested person may petition the court for an order requiring the personal representative to sell real or personal property of the estate in any of the following cases: (1) Where the sale is necessary to pay debts, devises, family allowance, expenses of administration, or taxes. (2) Where the sale is to the advantage of the estate and in the best interest of the interested persons. (3) Where the property is directed by the will to be sold. (b) Notice of the hearing on the petition shall be given as provided in Section 1220. (c) Notice of the hearing on the petition also shall be given to the personal representative by citation served at least five days before the hearing.
37
Probate Code Section 10002
(a) Subject to subdivision (b), if directions are given in the will as to the mode of selling or the particular property to be sold, the personal representative shall comply with those directions. (b) If the court determines that it would be to the advantage of the estate and in the best interest of the interested persons, the court may make an order relieving the personal representative of the duty to comply with the directions in the will. The order shall specify the mode and the terms and conditions of selling or the particular property to be sold, or both. The personal representative or any interested person may file a petition for an order under this subdivision. Notice of the hearing on the petition shall be given as provided in Section 1220.
38
Probate Code Section 10003
Subject to Part 4 (commencing with Section 21400) of Division 11 and to Sections 10001 and 10002, if estate property is required or permitted to be sold, the personal representative may: (a) Use discretion as to which property to sell first. (b) Sell the entire interest of the estate in the property or any lesser interest therein. (c) Sell the property either at public auction or private sale.
39
Probate Code Section 10004
(a) Where the personal representative determines in his or her discretion that, by use or relationship, any assets of the estate, whether real or personal, constitute a unit for purposes of sale, the personal representative may cause the property to be appraised as a unit. (b) Whether or not the property is appraised as a unit, the personal representative may sell all the assets described in subdivision (a) as a unit and under one bid if the court finds the sale of the assets as a unit to be to the advantage of the estate. (c) No private sale of the assets as a unit may be made for less than 90 percent of the sum of the appraised values of the personal property and the sum of the appraised values of the real property, appraised separately, or for less than 90 percent of the appraised value if appraised as a unit. (d) If the assets to be sold as a unit include any real property, the sale shall be made in the manner provided for the sale of real property, and the bid and sale are subject to the limitations and restrictions established for the sale of real property. If the assets to be sold as a unit are entirely personal property, the property shall be sold in the manner provided for the sale of personal property.
40
Probate Code Section 10005
(a) If any property in the estate is sold for more than the appraised value, the personal representative shall account for the proceeds of sale, including the excess over the appraised value. (b) If any property in the estate is sold for less than the appraised value and the sale has been made in accordance with law, the personal representative is not responsible for the loss.
41
Probate Code Section 10006
If property in the estate is to be sold as an undivided interest in a cotenancy, the other cotenants may file in the estate proceeding written consent to have their interests sold pursuant to this chapter. Thereafter, the court's orders made pursuant to this chapter are as binding on the consenting cotenants as on the personal representative.
42
Probate Code Section 10150
(a) The personal representative may enter into a written contract with either or both of the following: (1) A licensed real estate broker to secure a purchaser for any real property of the estate. The broker may associate other licensed real estate brokers for this purpose, including use of a multiple listing service as defined in Section 1087 of the Civil Code. (2) One or more agents or brokers to secure a purchaser for any personal property of the estate. If the particular property to be sold or the particular manner of sale requires that the agent or broker be licensed, the contract may be made only with an agent or broker that is so licensed. (b) The contract may provide for payment of a fee, commission, or other compensation out of the proceeds of sale, but the contract is binding and valid as against the estate only for such amount as the court allows pursuant to Article 3 (commencing with Section 10160). No liability of any kind is incurred by the estate under the contract or a sale unless the sale is confirmed by the court, except for the obligations of the estate to the purchaser of personal property as to which title passes pursuant to Section 10259 without court confirmation or approval. The personal representative is not personally liable on the contract by reason of execution of the contract. (c) The contract may grant an exclusive right to sell property for a period not in excess of 90 days if, prior to execution of the contract granting an exclusive right to sell, the personal representative obtains permission of the court to enter into the contract upon a showing of necessity and advantage to the estate. The court may grant the permission when the personal representative is appointed or at any subsequent time upon ex parte application. The personal representative may execute one or more extensions of the contract granting an exclusive right to sell property, each extension being for a period not to exceed 90 days, if for each extension the personal representative obtains permission of the court upon ex parte application to extend the contract upon a showing of necessity and advantage to the estate of the extension.
43
Probate Code Section 10151
(a) The personal representative may enter into a written contract with any of the following: (1) Where the public auction sale will be held in this state, an auctioneer who is qualified to conduct business under Title 2.95 (commencing with Section 1812.600) of Part 4 of Division 3 of the Civil Code. (2) Where the public auction sale will be held outside this state pursuant to an order made under Section 10254, an auctioneer who is legally permitted in the jurisdiction where the sale will be held to conduct a public auction sale and to secure purchasers by that method for the personal property authorized to be sold by public auction sale in that jurisdiction under the court order. (b) The contract shall be one that is legally enforceable under the law of the jurisdiction where made. (c) The contract may provide for payment to the auctioneer of a fee, commission, or other compensation out of the proceeds of sale and for reimbursement of expenses, but the contract is binding and valid as against the estate only for such amounts as the court allows pursuant to Section 10167. No liability of any kind is incurred by the estate under the contract or a sale unless the sale is approved by the court, except for the obligations of the estate to the purchaser of personal property as to which title passes pursuant to Section 10259 without court confirmation or approval. The personal representative is not personally liable on the contract by reason of execution of the contract. (d) The contract may provide that personal property of two or more estates being administered by the same personal representative may be sold at the same public auction sale. Items of personal property may be sold separately or in a lot with other items from the same estate. A sale pursuant to the contract shall be with reserve. The auctioneer shall comply with the instructions of the personal representative with respect to withdrawal of items, risk of loss, place of delivery, warranties, and other matters.
44
Probate Code Section 10160
The estate is not liable to an agent, broker, or auctioneer under a contract for the sale of property or for any fee, commission, or other compensation or expenses in connection with a sale of property unless the following requirements are satisfied: (a) An actual sale is made. (b) If court confirmation or approval is required, the sale is confirmed or approved by the court as required. (c) The sale is consummated.
45
Probate Code Section 10160.5
The estate is not liable to an agent or broker under a contract for the sale of property or for any fee, commission, or other compensation or expenses in connection with sale of the property in either of the following cases: (a) Where the agent or broker, directly or indirectly, is the purchaser of the property. (b) Where the agent or broker representing the purchaser to whom the sale is confirmed has any interest in the purchaser.
46
Probate Code Section 10161
(a) Subject to the provisions of this article, whether or not the agent or broker has a contract with the personal representative, the fee, commission, or other compensation of an agent or broker in connection with a sale of property shall be the amount the court, in its discretion, determines to be a reasonable compensation for the services of the agent or broker to the estate. (b) Unless the agent or broker holds a contract granting an exclusive right to sell the property, an agent or broker is not entitled to any fee, commission, or other compensation for services to the estate in connection with a sale except in the following cases: (1) Where the agent or broker produces the original bid which is returned to the court for confirmation. (2) Where the property is sold on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser procured by the agent or broker. (c) If the agent or broker has a contract with the personal representative, the amount of the compensation of the agent or broker in connection with the sale of property shall not exceed the amount provided for in the contract.
47
Probate Code Section 10162
(a) Subject to subdivision (b), where the bid returned to the court for confirmation is made by a person who is not represented by an agent or broker and the successful bidder is represented by an agent or broker, the compensation of the agent or broker who procured the purchaser to whom the sale is confirmed shall not exceed one-half of the difference between the amount of the bid in the original return and the amount of the successful bid. (b) This section does not limit the compensation of the agent or broker who holds a contract under Section 10150 granting him or her the exclusive right to sell the property.
48
Probate Code Section 10162.3
(a) This section applies if all of the following circumstances exist: (1) There is no agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property. (2) The bid returned to court for confirmation is made by a purchaser represented by an agent or broker. (3) The court confirms the sale to that purchaser either on the bid returned to court for confirmation or on an increased bid made at the time of the hearing on the petition for confirmation. (b) If all the circumstances described in subdivision (a) exist, the court shall allow the agent or broker who procured the purchaser to whom the sale is confirmed the compensation determined under Section 10161 on the full amount for which the sale is confirmed.
49
Probate Code Section 10162.5
Subject to Section 10162.6, where an agent or broker holds a contract under Section 10150 granting the exclusive right to sell the property, the court shall allow to the agent or broker holding the contract the compensation determined under Section 10161 on: (a) The full amount for which the sale is confirmed in either of the following circumstances: (1) The bid returned to the court for confirmation is made by a purchaser who is not represented by an agent or broker and the court confirms the sale to that purchaser on that bid. (2) The bid returned to the court for confirmation is made by a purchaser who is represented by the agent or broker holding the contract and the court confirms the sale to that purchaser on an increased bid made at the time of the hearing on the petition for confirmation. (b) The amount of the original bid if both of the following circumstances exist: (1) The bid returned to court for confirmation is made by a purchaser who is not represented by an agent or broker or who is represented by the agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property. (2) The court confirms the sale on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser who was not procured by a bona fide agent or broker.
50
Probate Code Section 10162.6
(a) This section applies if both of the following circumstances exist: (1) An agent or broker holds a contract under Section 10150 granting the exclusive right to sell the property. (2) The contract provides that no compensation is payable to the agent or broker holding the contract if sale is confirmed to a particular purchaser named in the contract. (b) If the court confirms the sale to the purchaser named in the contract, whether on an original bid returned to the court or on an increased bid made at the time of the hearing on the petition for confirmation, the compensation of any agents or brokers involved in the sale is determined as provided in this article, except that no compensation is payable to the agent or broker holding the contract. (c) If the court confirms the sale to a purchaser other than the person named in the contract, whether on an original bid returned to the court or on an increased bid made at the time of the hearing on the petition for confirmation, the compensation of the agent or broker holding the contract, and of any other agents or brokers involved in the sale, is determined under this article as if the limitation in the contract did not exist.
51
Probate Code Section 10162.7
(a) Subject to Section 10162.6, this section applies if all of the following circumstances exist: (1) There is an agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property. (2) The bid returned to court for confirmation is made by a purchaser procured by another agent or broker. (3) The court confirms the sale to that purchaser either on the bid returned to court for confirmation or on an increased bid made at the time of the hearing on the petition for confirmation. (b) If all the circumstances described in subdivision (a) exist, the court shall allow the compensation determined under Section 10161 on the full amount for which the sale is confirmed. The compensation allowed by the court shall be divided between the agent or broker holding the contract and the other agent or broker as is provided in any agreement between the agent or broker holding the contract and the other agent or broker. If there is no agreement, the compensation on the amount of the original bid returned to the court shall be divided equally between the agent or broker holding the contract and the other agent or broker and, if the sale is confirmed on an increased bid, the other agent or broker shall be paid all of the compensation on the difference between the original bid and the amount for which the sale is confirmed.
52
Probate Code Section 10163
Subject to Sections 10162 and 10162.6, where the original bid returned to the court for confirmation was made by a purchaser who was not procured by an agent or broker, the court shall allow the compensation determined under Section 10161 on the full amount for which the sale is confirmed to the agent or broker who procured the purchaser to whom the sale is confirmed if either of the following conditions is satisfied: (a) The court confirms a sale on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser procured by an agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property. (b) There is no agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property and the court confirms a sale on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser procured by a bona fide agent or broker.
53
Probate Code Section 10164
(a) This section applies only where the court confirms a sale on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser who was not procured by a bona fide agent or broker. (b) Except as provided in subdivision (c), the court shall allow the compensation determined under Section 10161 on the amount of the original bid to the agent or broker whose original bid was returned to the court. (c) If an agent or broker holds a contract under Section 10150 granting the exclusive right to sell the property and the original bid returned to the court is made by a purchaser who was procured by another agent or broker, the compensation determined under Section 10161 on the amount of the original bid shall be divided between the agent or broker holding the contract and the other agent or broker as is provided in any agreement between the agent or broker holding the contract and the other agent or broker. If there is no agreement, the compensation shall be divided equally between the agent or broker holding the contract and the other agent or broker.
54
Probate Code Section 10165
(a) Subject to Section 10162.6, where the court confirms a sale on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser procured by a bona fide agent or broker, the court shall allow the compensation determined under Section 10161 on the full amount for which the sale is confirmed, as provided in this section, if either of the following conditions is satisfied: (1) The original bid returned to the court for confirmation was made by a purchaser who was procured by another agent or broker. (2) The original bid returned to the court for confirmation was made by a purchaser who was not represented by an agent or broker, and another agent or broker holds a contract under Section 10150 granting the exclusive right to sell the property. (b) The agent or broker who procured the purchaser to whom the sale is confirmed shall be paid one-half of the compensation on the amount of the original bid and all of the compensation on the difference between the original bid and the amount for which the sale is confirmed. (c) The other one-half of the compensation on the amount of the original bid shall be paid as follows: (1) If the original bid returned to the court is made by a purchaser who was procured by the agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property, the entire one-half of the compensation on the original bid shall be paid to that agent or broker. (2) If the original bid returned to the court is made by a purchaser who was procured by a bona fide agent or broker and there is no agent or broker holding a contract under Section 10150 granting the exclusive right to sell the property, the entire one-half of the compensation on the original bid shall be paid to that agent or broker. (3) If there is an agent or broker who holds a contract under Section 10150 granting the exclusive right to sell the property and the original bid returned to the court is made by a purchaser who was procured by another agent or broker, the one-half of the compensation on the amount of the original bid shall be divided between the agent or broker holding the contract granting the exclusive right to sell the property and the other agent or broker whose original bid was returned to the court for confirmation as is provided in any agreement between the agent or broker holding the contract and the other agent or broker. If there is no agreement, the one-half of the compensation on the amount of the original bid shall be divided equally between the agent or broker holding the contract and the other agent or broker whose original bid was returned to the court for confirmation. (4) If there is an agent or broker who holds a contract under Section 10150 granting the exclusive right to sell the property and the original bid returned to the court is made by a purchaser who is not represented by an agent or broker and the court confirms the sale on an increased bid, made at the time of the hearing on the petition for confirmation, to a purchaser procured by another agent or broker, the entire one-half of the compensation on the original bid shall be paid to the agent or broker holding the contract. (5) If the agent or broker compensated under subdivision (b) holds a contract under Section 10150 granting the exclusive right to sell the property, the entire one-half of the compensation on the original bid shall be paid to the other agent or broker who procured the original bid returned to the court.
55
Probate Code Section 10166
Notwithstanding that a bid contains a condition that a certain amount of the bid shall be paid to an agent or broker by the personal representative, only such compensation as is proper under this article shall be allowed. Acceptance of the bid by the court binds the bidder even though the compensation allowed by the court is less than that specified by the condition.
56
Probate Code Section 10167
(a) Subject to subdivision (b), whether or not the auctioneer has a contract with the personal representative, the fees, compensation, and expenses of an auctioneer in connection with a sale of property shall be the amount the court, in its discretion, determines to be a reasonable compensation for the services of the auctioneer to the estate. (b) If the auctioneer has a contract with the personal representative, the amount of the compensation of the auctioneer in connection with the sale of property shall not exceed the amount provided for in the contract.
57
Probate Code Section 10168
This article does not supersede any agreement cooperating agents or brokers may have among themselves to divide the compensation payable under this article.
58
Probate Code Section 10300
(a) Except as provided in Sections 10301 to 10303, inclusive, and in Section 10503, real property of the estate may be sold only after notice of sale has been published pursuant to Section 6063a of the Government Code (1) in a newspaper published in the county in which the real property or some portion thereof is located or (2) if there is no such newspaper, in such newspaper as the court or judge may direct. (b) The publication of notice of sale shall be completed before: (1) In the case of a private sale, the day specified in the notice as the day on or after which the sale is to be made. (2) In the case of a public auction sale, the day of the auction.
59
Probate Code Section 10301
(a) If it appears from the inventory and appraisal that the value of the real property to be sold does not exceed five thousand dollars ($5,000), the personal representative may in his or her discretion dispense with publication of notice of sale and, in lieu of publication, post the notice of sale at the courthouse of the county in which the real property or some portion thereof is located. (b) Except as provided in Section 10302, posting pursuant to this section shall be for at least 15 days before: (1) In the case of a private sale, the day specified in the notice of sale as the day on or after which the sale is to be made. (2) In the case of a public auction sale, the day of the auction.
60
Probate Code Section 10302
(a) If it is shown that it will be to the advantage of the estate, the court or judge may by order shorten the time of notice of sale to not less than five days. (b) Except as provided in subdivision (c), if the court or judge makes an order under subdivision (a), notice of sale shall be published as provided in Section 10300 except that the publication shall be pursuant to Section 6061 of the Government Code. (c) In a case described in Section 10301, if the court makes an order under subdivision (a), notice of sale shall be posted as provided in Section 10301 except that the notice of sale shall be posted at least five days before the sale instead of 15 days as required by Section 10301.
61
Probate Code Section 10303
Real property may be sold with or without notice, as the personal representative may determine, in either of the following cases: (a) Where the property is directed by the will to be sold. (b) Where authority is given in the will to sell the property.
62
Probate Code Section 10304
(a) The notice of sale given pursuant to this article shall state all of the following: (1) Whether the sale is to be a private sale or a public auction sale. (2) In the case of a private sale, the place at which bids or offers will be received and a day on or after which the sale will be made or, in the case of a public auction sale, the time and place of sale. (3) The street address or other common designation or, if none, a legal description of the real property to be sold. (b) The notice of sale may state other matters in addition to those required by subdivision (a), including terms and conditions of sale.
63
Probate Code Section 10305
(a) A sale of real property at public auction shall be made in the county in which the property is located. If the property is located in two or more counties, it may be sold in any one of them. (b) A sale of real property at public auction shall be made between 9 a.m. and 9 p.m., and the sale shall be made on the day specified in the notice of sale unless the sale is postponed. (c) The personal representative may postpone a public auction sale of real property from time to time if all of the following conditions are satisfied: (1) The personal representative believes that the postponement is to the advantage of the estate. (2) Notice of the postponement is given by public declaration at the time and place appointed for the sale. (3) The postponement, together with previous postponements of sale of the property, does not exceed three months in all.
64
Probate Code Section 10306
(a) A private sale of real property may not be made before the day stated in the notice of sale as the day on or after which the sale will be made, nor later than one year after that day. (b) In the case of a private sale of real property, the bids or offers shall be in writing and shall be left at the place designated in the notice of sale, or be delivered to the personal representative personally or to the person specified in the notice of sale, at any time after the first publication or posting of notice of sale and before the making of the sale.
65
Probate Code Section 10307
Whether a sale of real property is private or at public auction, bids shall substantially comply with any terms specified in the notice of sale.
66
Probate Code Section 10308
(a) Except as provided in Section 10503, all sales of real property shall be reported to and be confirmed by the court before title to the property passes to the purchaser, whether the sale is a private sale or a public auction sale and notwithstanding that the property is directed by the will to be sold or authority is given in the will to sell the property. (b) If the personal representative fails to file the report and a petition for confirmation of the sale within 30 days after the sale, the purchaser at the sale may file the report and petition for confirmation of the sale. (c) Notice of the hearing on the petition for confirmation filed under subdivision (a) or (b) shall be given as provided in Section 1220 to the persons designated by that section and to the purchasers named in the petition, and posted as provided in Section 1230.
67
Probate Code Section 10309
(a) Except as provided in Section 10207, no sale of real property at private sale shall be confirmed by the court unless all of the following conditions are satisfied: (1) The real property has been appraised within one year prior to the date of the confirmation hearing. (2) The valuation date used in the appraisal described in paragraph (1) is within one year prior to the date of the confirmation hearing. (3) The sum offered for the property is at least 90 percent of the appraised value of the property as determined by the appraisal described in paragraph (1). (b) An appraisal of the property may be had at any time before the sale or the confirmation of sale in any of the following cases: (1) Where the property has not been previously appraised. (2) Where the property has not been appraised within one year before the date of the confirmation hearing. (3) Where the valuation date used in the latest appraisal is more than one year before the date of the confirmation hearing. (4) Where the court is satisfied that the latest appraisal is too high or too low. (c) A new appraisal made pursuant to subdivision (b) need not be made by a probate referee if the original appraisal of the property was made by a person other than a probate referee. If the original appraisal of the property was made by a probate referee, the new appraisal may be made by the probate referee who made the original appraisal without further order of the court or further request for the appointment of a new probate referee. If appraisal by a probate referee is required, a new probate referee shall be appointed, using the same procedure as for the appointment of an original referee, to make the new appraisal if the original probate referee is dead, has been removed, or is otherwise unable to act, or if there is other reason to appoint another probate referee.
68
Probate Code Section 10310
(a) Except as provided in this subdivision, at the hearing on the petition for confirmation of the sale of the real property, the court shall examine into the necessity for the sale or the advantage to the estate and the benefit to the interested persons in making the sale. If the decedent's will authorizes or directs the property to be sold, there need be no showing of the necessity of the sale or the advantage to the estate and benefit to the interested persons in making the sale. (b) The court shall examine into the efforts of the personal representative to obtain the highest and best price for the property reasonably attainable. (c) Any interested person may file written objections to the confirmation of the sale at or before the hearing and may testify and produce witnesses in support of the objections.
69
Probate Code Section 10311
(a) Subject to subdivisions (b), (c), (d), and (e), and except as provided in Section 10207, if a written offer to purchase the real property is made to the court at the hearing on the petition for confirmation of the sale, the court shall accept the offer and confirm the sale to the offeror if all of the following conditions are satisfied: (1) The offer is for an amount at least 10 percent more on the first ten thousand dollars ($10,000) of the original bid and 5 percent more on the amount of the original bid in excess of ten thousand dollars ($10,000). (2) The offer is made by a responsible person. (3) The offer complies with all provisions of law. (b) Subject to subdivisions (c), (d), and (e), if there is more than one offer that satisfies the requirements of subdivision (a), the court shall accept the highest such offer and confirm the sale to the person making that offer. (c) The court may, in its discretion, decline to accept the offer that satisfies the requirements of subdivisions (a) and (b); and, in such case, the court shall order a new sale. (d) If the sale returned for confirmation is on credit and the higher offer is for cash or on credit, whether on the same or different credit terms, or the sale returned for confirmation is for cash and the higher offer is on credit, the court may not consider the higher offer unless the personal representative informs the court in person or by counsel prior to confirmation of sale that the higher offer is acceptable. (e) For the purpose of this section, the amount of the original bid and any higher offer shall be determined by the court without regard to any of the following: (1) Any commission on the amount of the bid to which an agent or broker may be entitled under a contract with the personal representative. (2) Any condition of the bid that a certain amount of the bid be paid to an agent or broker by the personal representative.
70
Probate Code Section 10312
If notice of the sale was required, before an order is made confirming the sale it shall be proved to the satisfaction of the court that notice of the sale was given as required by this article, and the order of confirmation shall show that the proof was made.
71
Probate Code Section 10313
(a) The court shall make an order confirming the sale to the person making the highest offer that satisfies the requirements of this article, and directing conveyances or assignments or both to be executed, if it appears to the court that all of the following requirements are satisfied: (1) Either the sale was authorized or directed to be made by the decedent's will or good reason existed for the sale. (2) If notice of the sale was required, the proof required by Section 10312 has been made. (3) The sale was legally made and fairly conducted. (4) The amount for which the sale is to be confirmed is not disproportionate to the value of the property. (5) In the case of a private sale, the sale complied with the requirements of Section 10309. (6) If the sale is confirmed to the original bidder, it does not appear that a sum exceeding the original bid by at least 10 percent more on the first ten thousand dollars ($10,000) of the original bid and 5 percent more on the amount of the original bid in excess of ten thousand dollars ($10,000), exclusive of the expenses of a new sale, may be obtained. (b) Upon its own motion or upon the request of the personal representative, the agent or broker, or any other interested person, made at the time of the confirmation hearing or at another time, the court shall fix the compensation of the agent or broker as provided in Article 3 (commencing with Section 10160). (c) If it appears to the court that the requirements of subdivision (a) are not satisfied, the court shall vacate the sale and order a new sale. (d) If the court orders a new sale under subdivision (c) of this section or under subdivision (c) of Section 10311, notice of the new sale shall be given and the new sale shall in all respects be conducted as if no previous sale had taken place.
72
Probate Code Section 10314
(a) Except as provided in subdivision (b), upon confirmation of the sale, the personal representative shall execute a conveyance to the purchaser which shall refer to the order confirming the sale and directing the conveyance to be executed. A certified copy of the order shall be recorded in the office of the recorder of the county in which the real property or some portion thereof is located. (b) Upon confirmation of a sale of the decedent's interest under a contract for the purchase of real property by the decedent and after the purchaser has given a bond if one is required under Section 10206, the personal representative shall execute an assignment of the contract to the purchaser. (c) A conveyance made in compliance with the court order confirming the sale and directing the conveyance to be executed vests in the purchaser both of the following: (1) All the right, title, and interest which the decedent had in the property at the time of the decedent's death. (2) Any other or additional right, title, or interest in the property acquired by the estate of the decedent, by operation of law or otherwise, prior to the sale. (d) An assignment made in compliance with the court order confirming the sale of the decedent's interest under a contract for the purchase of real property by the decedent vests in the purchaser all the right, title, and interest of the estate, or of the persons entitled to the interest of the decedent, at the time of sale in the property assigned. The purchaser of the decedent's interest under the contract for the purchase of the real property by the decedent has the same rights and remedies against the vendor of the property as the decedent would have had if living.
73
Probate Code Section 10315
(a) If a sale is made on credit, the personal representative shall take the note of the purchaser for the unpaid portion of the purchase money, with a mortgage or deed of trust on the property to secure payment of the note. The mortgage or deed of trust shall be subject only to encumbrances existing at the date of sale and such other encumbrances as the court may approve. (b) Where property sold by the personal representative for part cash and part deferred payments consists of an undivided interest in real property or any other interest therein less than the entire ownership and the owner or owners of the remaining interests therein join in the sale, the note and deed of trust or mortgage may be made to the personal representative and such others having an interest in the property. The interest of the personal representative in the note and deed of trust or mortgage shall be in the same interest and in the same proportions as the estate's interest in the property prior to the sale.
74
Probate Code Section 10316
No omission, error, or irregularity in the proceedings under this article shall impair or invalidate the proceedings or the sale pursuant to an order made under this article.
75
Probate Code Section 10350
(a) If after court confirmation of sale of real or personal property the purchaser fails to comply with the terms of sale, the court may, on petition of the personal representative, vacate the order of confirmation, order a resale of the property, and award damages to the estate against the purchaser. (b) Notice of the hearing on the petition shall be given as provided in Section 1220 to the persons designated by that section and the notice and a copy of the petition shall be given to the buyers and brokers named in the order confirming sale, except that notice need not be given to a defaulting purchaser whose written consent to the petition is filed with the court before the hearing. (c) Notice of the resale of the property shall be given as provided in this chapter for a sale of the property in the first instance. (d) Proceedings after notice of the resale shall be as provided in this chapter for a sale of the property in the first instance. (e) If the property is resold, the defaulting purchaser is liable to the estate for damages equal to the sum of the following: (1) The difference between the contract price of the first sale and the amount paid by the purchaser at the resale. (2) Expenses made necessary by the purchaser's breach. (3) Other consequential damages.
76
Probate Code Section 10351
(a) The court may vacate the order of confirmation of a sale of real or personal property and make an order confirming the sale to the new high bidder if both of the following requirements are satisfied: (1) A petition is filed within 60 days after confirmation of the sale showing that (A) the purchaser at the sale has failed to complete the purchase and (B) a bid has been made for the property in the same or a higher amount, on the same or better terms, and in the manner prescribed in the original notice of sale. (2) The sale has not been vacated pursuant to Section 10350. (b) Notice of the hearing on the petition shall be given as provided in Section 1220 to the persons designated by that section and the notice and a copy of the petition shall be given to the buyers and brokers named in the order confirming sale, except that notice need not be given to a defaulting purchaser whose written consent to the vacation of the order confirming the sale is filed with the court prior to the hearing. (c) If the report and petition for confirmation of the second sale are not filed within 60 days of the confirmation of the first sale, the property may be resold only in the manner provided in Section 10350.
77
Probate Code Section 10360
As used in this article: (a) "Amount secured by the lien" includes interest and any costs and charges secured by the lien. (b) "Encumbered property" means real or personal property that is subject to a lien for a secured debt which is a valid claim against the estate and which has been allowed or approved. (c) "Lien" means a mortgage, deed of trust, or other lien.
78
Probate Code Section 10361
(a) If encumbered property is sold, the purchase money shall be applied in the following order: (1) Expenses of administration which are reasonably related to the administration of the property sold as provided in paragraph (1) of subdivision (a) of Section 11420. (2) The payment of the expenses of the sale. (3) The payment and satisfaction of the amount secured by the lien on the property sold if payment and satisfaction of the lien is required under the terms of the sale. (4) Application in the course of administration. (b) The application of the purchase money, after the payment of those expenses set forth in paragraphs (1) and (2) of subdivision (a), to the payment and satisfaction of the amount secured by the lien on the property sold shall be made without delay; and, subject to Section 10362, the property sold remains subject to the lien until the purchase money has been actually so applied.
79
Probate Code Section 10361.5
The personal representative or any interested party may, at any time before payment is made to satisfy all liens on the encumbered property sold, petition for an order determining the amount of expenses of administration that are reasonably related to the administration of that encumbered property as provided in paragraph (1) of subdivision (a) of Section 11420. The petition may be heard as part of a petition for confirmation of sale of personal or real property as provided in Section 10260 or 10308, respectively or may be heard separately. If the petition is presented as part of a petition for confirmation of sale of real or personal property, the notice of hearing otherwise required by this code for a petition for confirmation of sale shall be given in addition to the notice requirements under Section 10361.6.
80
Probate Code Section 10361.6
(a) At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 3 of the Code of Civil Procedure on all of the following persons: (1) The personal representative, if the personal representative is not the petitioner. (2) The holder of any mortgage or other lien secured by the property that is sold. (3) All agents or brokers entitled to compensation from the proceeds of the property that is sold. (b) Except for those persons given notice pursuant to subdivision (a), notice of the hearing, together with a copy of the petition, shall be given as provided in Section 1220 to all of the following persons: (1) Each person listed in Section 1220. (2) Each known heir whose interest in the estate would be affected by the petition. (3) Each known devisee whose interest in the estate would be affected by the petition. (4) The Attorney General, at the office of the Attorney General in Sacramento, if any portion of the estate is to escheat to the state and its interest in the estate would be affected by the petition. (c) The court may not shorten the time for giving the notice of hearing under this section.
81
Probate Code Section 10362
(a) If encumbered property is sold, the purchase money, or so much of the purchase money as is sufficient to pay the amount secured by the lien on the property sold and the expenses of the sale, may be paid to the clerk of the court. Upon the payment being so made, the lien on the property sold ceases. (b) The clerk of court without delay shall use the money paid to the clerk under this section to pay the expenses of the sale and to pay and satisfy the amount secured by the lien on the property sold. The clerk shall at once return the surplus, if any, to the personal representative unless the court, for good cause shown and after notice to the personal representative, otherwise orders.
82
Probate Code Section 10363
(a) At a sale of real or personal property subject to a lien, the lienholder may become the purchaser of the property, even though no claim for the amount secured by the lien on the property sold has been, or could have been, filed, allowed, or approved. (b) Unless the property is sold subject to the lien: (1) If the lienholder becomes the purchaser of the property and the amount secured by the lien on the property is a valid claim against the estate and has been allowed or approved, the receipt of the lienholder for the amount due the lienholder from the proceeds of the sale is a payment pro tanto. (2) If the lienholder becomes the purchaser of the property and no claim for the amount secured by the lien on the property has been filed, allowed, or approved, the court may at the hearing on the petition for confirmation of the sale examine into the validity and enforceability of the lien and the amount secured by the lien, and the court may authorize the personal representative to accept the receipt of the lienholder for the amount secured by the lien as payment pro tanto. (3) If the lienholder becomes the purchaser of the property and the amount for which the property is purchased is insufficient to pay the expenses of the sale and to discharge the lienholder's lien, whether or not a claim has been filed, allowed, or approved, the lienholder shall pay to the clerk of the court an amount sufficient to cover the expenses of the sale. (c) Nothing permitted under this section shall be deemed to be an allowance or approval of a claim based upon the lien or the amount secured by the lien.
83
Probate Code Section 10400
This part shall be known and may be cited as the Independent Administration of Estates Act.
84
Probate Code Section 10401
As used in this part, "court supervision" means the judicial order, authorization, approval, confirmation, or instructions that would be required if authority to administer the estate had not been granted under this part.
85
Probate Code Section 10402
As used in this part, "full authority" means authority to administer the estate under this part that includes all the powers granted under this part.
86
Probate Code Section 10403
As used in this part, "limited authority" means authority to administer the estate under this part that includes all the powers granted under this part except the power to do any of the following: (a) Sell real property. (b) Exchange real property. (c) Grant an option to purchase real property. (d) Borrow money with the loan secured by an encumbrance upon real property.
87
Probate Code Section 10404
The personal representative may not be granted authority to administer the estate under this part if the decedent's will provides that the estate shall not be administered under this part.
88
Probate Code Section 10405
A special administrator may be granted authority to administer the estate under this part if the special administrator is appointed with, or has been granted, the powers of a general personal representative.
89
Probate Code Section 10406
(a) Subject to subdivision (b), this part applies in any case where authority to administer the estate is granted under this part or where independent administration authority was granted under prior law. (b) If the personal representative was granted independent administration authority prior to July 1, 1988, the personal representative may use that existing authority on and after July 1, 1988, to borrow money on a loan secured by an encumbrance upon real property, whether or not that existing authority includes the authority to sell real property.
