Code Section Group

Probate Code - PROB

DIVISION 7. ADMINISTRATION OF ESTATES OF DECEDENTS [7000 - 12591]

  ( Division 7 enacted by Stats. 1990, Ch. 79. )

PART 5. ESTATE MANAGEMENT [9600 - 10382]

  ( Part 5 enacted by Stats. 1990, Ch. 79. )

CHAPTER 18. Sales [10000 - 10382]

  ( Chapter 18 enacted by Stats. 1990, Ch. 79. )

ARTICLE 6. Sale of Real Property [10300 - 10316]
  ( Article 6 enacted by Stats. 1990, Ch. 79. )

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Amended by Stats. 1992, Ch. 871, Sec. 11. Effective January 1, 1993.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Enacted by Stats. 1990, Ch. 79.)

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