ADA
local probate rule 7

PROBATE RULE 7: SALE UNDER COURT SUPERVISION

A. PUBLICATION OF NOTICE OF INTENTION TO SELL
B. PETITION FOR CONFIRMATION OF SALE OF REAL PROPERTY; SALE PROCEDURE

A. PUBLICATION OF NOTICE OF INTENTION TO SELL

The notice of intention to sell must be published in decedents' estates where the personal representative has not been given the power of sale in the will. Publication is not required where the personal representative is using the Notice of Proposed Action procedure under The Independent Administration of Estates Act. For sales in conservatorship and guardianship proceedings, see Probate Code §2543 (b) and (c), and §2591.5.

(Eff. 7/01/07)

The report of sale must be filed within one year of the last published date of notice of intention to sell.

It is advisable that the published notice call for "cash or such credit terms and conditions as the Court may approve." There cannot be a variance in the terms of sale between those shown in the petition and those in the published notice.

The published notice of intention to sell real property is a solicitation for offers. No offer can be accepted prior to the expiration of the notice period specified in the notice of intention to sell.

On filing an appropriate affidavit or declaration, the Court may sign an order shortening the notice period to 5 days, with sale permitted on the sixth day after publication. The practical effect of this order is that only one publication is necessary.

B. PETITION FOR CONFIRMATION OF SALE OF REAL PROPERTY; SALE PROCEDURE

(1) TIME FOR FILING PETITION

A petition for confirmation of sale should be filed by the personal representative within 30 days after the date of acceptance of a contract. Note that the property is initially sold by the personal representative and then returned to the Court for confirmation.

(2) CONTRACT OF SALE TO BE FILED WITH COURT


At the time of filing the petition for confirmation, the petitioner must file a copy of the contract of sale.

(3) DEED OF TRUST

Upon an appropriate showing by the petitioner, the Court may approve a sale where part of the consideration is to be secured by a deed of trust of which the personal representative is the beneficiary.

(4) SALE SUBJECT TO ENCUMBRANCE

Sale of real property will not ordinarily be confirmed when the purchaser assumes or takes subject to an existing encumbrance, if as a result the estate remains subject to a contingent liability on the encumbrance (i.e., "wraps"). The petition must set forth the facts pertinent to such assumption agreement.

(5) SALES OF FRACTIONAL INTERESTS

Where the estate owns only a fractional interest in the real property, the petition must state whether the sale by the estate is conditioned upon closing of a sale of the unowned fraction.



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