If you’re reading this, there’s a good chance a parent or relative has died, the house wasn’t in a living trust, and someone just told you the word “probate.” I’ve been selling homes in Santa Clara County for more than 23 years, and a large share of my practice now is exactly this situation: an executor, often an adult child who lives out of the area, trying to figure out how to sell a family home in San Jose, Cupertino, Los Gatos, or Sunnyvale while the court is involved. This guide walks through the real estate side of that process in plain English, with the actual rules, the real numbers, and what I see happen in practice here in our county. Selling a house in probate isn’t as mysterious as it sounds once you see the steps laid out in order.
Key Takeaways
Summary: Most Silicon Valley homes that weren’t in a trust go through formal probate, and whether the executor has full IAEA authority shapes how the house sells. Plan on 9 to 18 months overall, with the house usually selling in months 3 through 7 once Letters are issued.
A Silicon Valley Probate Success Story
Not long ago, an out-of-state executor contacted me regarding her brother’s estate. Having not seen the property in over a dozen years, she was shocked to find it completely stuffed with junk – her brother had become a hoarder in his later years. She feared the home’s condition would make it difficult to sell, and in order to get the maximum cash at closing, we did some targeted pre-sale repairs to put it into good enough condition so that a buyer would be able to get a loan on it to make a “retail price” offer. Then, my Demand Maximization Strategy secured a strong offer at a great price, at a time when a number of competitive listings were languishing on the market. My clients had nothing to do; I handled all the work, keeping them in the loop with photos and videos as the repairs proceeded and as the sale moved to closing. Winner!
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Before anyone files anything, I always ask the family to pull the deed and the estate planning documents, because a surprising number of homes that people assume are “in probate” are not. If the house was deeded to a living trust, the successor trustee sells it without court involvement, and I cover that in my guide to selling a house in a trust after a death. If the house was held in joint tenancy, or as community property with right of survivorship, it usually passes to the surviving owner with a simple affidavit recorded at the County Recorder. A recorded revocable transfer on death deed also avoids probate.
If none of those apply, California has two simplified routes. The small estate affidavit only works when the total estate is $208,850 or less, and the separate real property affidavit is capped at $69,625, which doesn’t help anyone who owns a house in this county. The more useful route is the petition to determine succession under Probate Code section 13151, which since April 1, 2025 can be used for a decedent’s primary residence worth up to $750,000. In Santa Clara County that mostly means a condo or an older townhome, and I wrote a separate piece on whether the $750,000 primary residence petition works in Silicon Valley. For a typical single-family home in San Jose, where values commonly run from $1.4 million to well over $2 million, formal probate is the path.
Step by Step: How a Probate Home Sale Works in Santa Clara County
All probate matters in our county are heard at the Downtown Superior Court at 191 North First Street in San Jose. Here is the sequence I walk executors through, with the real estate decisions called out at each stage.
Step 1: The petition is filed and a hearing is set
The estate attorney files a Petition for Probate (Judicial Council form DE-111) asking the court to admit the will, if there’s one, and appoint the executor or administrator. The same petition asks for authority under the IAEA, and this is where the most important real estate decision gets made, often without the family realizing it. Notice of the petition has to be published in a newspaper and mailed to heirs, and in Santa Clara County the first hearing typically lands about 60 to 90 days after filing. The probate examiners review every file ahead of time and post notes online, so a petition with defects can get continued, which pushes everything back several weeks.
Step 2: Letters are issued
Once the court signs the order, the clerk issues Letters Testamentary (if there’s a will) or Letters of Administration (if there’s not). This is the document that lets the personal representative act for the estate, and no title company will insure a sale without it. A bond may be required unless the will waives it or all heirs sign waivers. I tell families that the listing can be prepared before Letters are issued, but nobody should sign a purchase contract until the executor has them in hand.
Step 3: The probate referee appraises the house
California assigns a state-appointed probate referee to value real estate for the Inventory and Appraisal (form DE-160). That appraisal matters for two reasons. It sets the benchmark for the 90 percent rule in court confirmation sales, and it becomes powerful evidence of the stepped-up tax basis the heirs receive. In my experience referee values in Santa Clara County are usually reasonable but can lag a fast-moving market, sometimes by several months. If you think the value is off, the time to raise it with your attorney is before the inventory is filed, and a broker opinion of value with real comparable sales can help.
Step 4: Secure, insure, and prepare the house
While the paperwork moves, the house needs to be protected. That means changing the locks, notifying the homeowner’s insurance carrier that the owner has died and the property is vacant (many policies restrict coverage after 30 or 60 days of vacancy), keeping utilities on, and stopping the mail. Then comes the part that overwhelms most families, which is the contents. I usually recommend a professional estate sale company or cleanout crew rather than asking siblings to spend six weekends sorting, and my notes on working with an estate sale company cover what that costs locally. Whether to do repairs is a separate question that I address in selling a probate house as-is or fixing it up.
Sell As-Is. Sell Easy. Sell Smart!
Step 5: List and market the house
A probate listing in this county is marketed like any other listing, with photos, open houses, and full MLS exposure. The listing agreement has to follow the probate rules on exclusive listings, and in a court confirmation sale the judge has final say over the commission. The marketing should make clear which kind of sale it is, because buyers and their agents price their offers very differently when they know they could be overbid in court.
Step 6: Accept an offer and give notice or go to court
This is where the two paths split. With full IAEA authority, the executor signs the contract and sends a Notice of Proposed Action (form DE-165) to the heirs, who have 15 days to object. If nobody objects, the sale proceeds without a court hearing. With limited authority, or if an heir objects, the accepted offer becomes the opening bid in a court confirmation hearing. Local Rule 7.B in Santa Clara County says the petition for confirmation should be filed within 30 days after the contract is accepted, along with a copy of the contract.
Step 7: Close escrow
For a full-authority sale, escrow typically closes 30 to 45 days after the notice period ends. For a court confirmation sale, closing usually happens within 30 days after the court signs the order confirming sale, once the order is certified and recorded. Title will want certified Letters, and the proceeds go into the estate account, not to the heirs directly.
Step 8: Creditor period, accounting, and distribution
Creditors have four months after Letters are issued to file claims, so the estate can’t close before that window passes. After that the attorney files a final accounting and petition for distribution, and the court sets another hearing. Only then do heirs receive their shares of the sale proceeds. Selling the house doesn’t end probate, and I make sure families understand that before they budget around getting their money.
Full IAEA Authority vs. Court Confirmation: The Decision That Shapes Everything
Most executors I meet have never heard of the Independent Administration of Estates Act, yet it determines how their house will sell. Here is the side-by-side comparison I use with clients. I go much deeper in IAEA full authority vs. court confirmation.
| Full IAEA authority | Limited authority or court confirmation | |
|---|---|---|
| Who approves the sale | The executor, after a 15-day Notice of Proposed Action to heirs | The probate judge, at a confirmation hearing |
| 90 percent of appraisal rule | Doesn’t apply (Probate Code 10503) | Applies (Probate Code 10309) |
| Public overbidding | No | Yes, in open court |
| Buyer contingencies | Can be negotiated like a normal sale | Buyers generally must be ready to close as-is, without loan or inspection contingencies |
| Commission | Set by the listing agreement | Approved by the court and can be split with an overbidder’s agent |
| Typical time from accepted offer to close | About 45 to 60 days | About 60 to 120 days, depending on the court calendar |
| What it does to price | Offers look like the regular market | Buyers often bid lower to leave room for the overbid |
The practical takeaway is that full authority almost always produces a smoother sale with a larger buyer pool. Court confirmation isn’t a disaster, and sometimes the open-court bidding actually pushes the price up, but it narrows your buyers to people who can close without contingencies on the court’s timeline.
Timing is Everything in Life
How the Overbid Rules Work, With Real Numbers
When a sale goes to court, the judge announces the accepted offer and asks whether anyone in the courtroom wants to bid more. Under Probate Code section 10311, the first overbid has to be at least 10 percent more on the first $10,000 of the original bid and 5 percent more on everything above $10,000. After that, the judge sets the bidding increments, which in my experience are usually a few thousand dollars at a time.
| Accepted offer | 10% of first $10,000 | 5% of the balance | Minimum first overbid |
|---|---|---|---|
| $1,200,000 | $1,000 | $59,500 | $1,260,500 |
| $1,650,000 | $1,000 | $82,000 | $1,733,000 |
| $2,100,000 | $1,000 | $104,500 | $2,205,500 |
Overbidders typically need to bring a cashier’s check for 10 percent of their bid made out to the estate, and they’re buying on the same as-is terms as the original buyer. The court looks at the bid amount without regard to commissions, which matters because an overbid from a buyer with a different agent can change how the commission gets split under Probate Code sections 10160 through 10166. I explain what actually happens in the courtroom in the probate overbid and confirmation hearing in Santa Clara County.
The 90 Percent Rule and Why It Matters Less Than People Think
In a court confirmation sale, Probate Code section 10309 requires the sale price to be at least 90 percent of the appraised value, and the appraisal has to be recent, generally within one year of the confirmation hearing. If the referee appraised a Campbell home at $1,500,000, the court won’t confirm a sale below $1,350,000 without a new appraisal. Under full IAEA authority, section 10503 says the 90 percent requirement doesn’t apply. That said, heirs receive the price in the Notice of Proposed Action, and a price far below the appraisal is exactly the kind of thing that triggers an objection. In practice the right answer is the same either way, which is to price the house to the actual market with good comparable sales so nobody has a reason to object.
Realistic Timelines in Santa Clara County
Families usually want a single number, and the honest answer is a range that depends mostly on the court calendar and on whether anyone disagrees. Here is what I see in our county today. I break this down in more detail in how long it takes to sell a house in probate in Santa Clara County, and my older overview of the California probate timeline covers the statewide framework.
| Stage | Typical time in Santa Clara County |
|---|---|
| Hiring an attorney and filing the petition | 2 to 6 weeks |
| Filing to first hearing | About 60 to 90 days |
| Order signed to Letters issued | 1 to 3 weeks |
| Cleanout, prep, and listing | 3 to 8 weeks (can overlap with the wait for Letters) |
| On market to accepted offer | 1 to 4 weeks in most price ranges |
| Full authority: notice period and escrow | About 45 to 60 days |
| Court confirmation: hearing and escrow | About 60 to 120 days |
| Creditor claim period | 4 months from Letters, running at the same time as the sale |
| Final accounting and distribution | 3 to 6 months after the creditor period, often longer |
What It Costs: Statutory Fees and Commissions
California sets the executor’s and attorney’s ordinary fees by statute in Probate Code sections 10800 and 10810, and the part that catches families off guard is that the fees are calculated on the gross value of the estate, without subtracting the mortgage. Each of them may receive 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, and 1 percent of the next $9 million.
| Gross estate value | Executor fee | Attorney fee | Combined |
|---|---|---|---|
| $1,200,000 | $25,000 | $25,000 | $50,000 |
| $1,800,000 | $31,000 | $31,000 | $62,000 |
| $2,500,000 | $38,000 | $38,000 | $76,000 |
Family members serving as executor often waive their fee, especially when they’re also an heir, since the fee is taxable income and the inheritance is not. Add the real estate commission, the probate referee’s fee (one tenth of one percent of the value appraised), publication and filing costs, and any bond premium. I lay all of this out on a sample Silicon Valley estate in probate fees and realtor commission on a Silicon Valley home.
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What the Court Actually Requires From You
Executors tend to imagine the court wants far more from them than it does, and at the same time they miss the few things that really matter. On the real estate side, the court file will typically include the following Judicial Council forms, all of which your attorney prepares:
- DE-111, the Petition for Probate, where IAEA authority is requested
- DE-121, the Notice of Petition to Administer Estate, which is published and mailed
- DE-140 and DE-150, the Order for Probate and the Letters
- DE-147, the Duties and Liabilities of Personal Representative, which the executor signs
- DE-160, the Inventory and Appraisal, with the probate referee’s value on the house
- DE-165, the Notice of Proposed Action, for a full-authority sale
- DE-260 and DE-265, the Report of Sale and Petition for Order Confirming Sale and the Order Confirming Sale, for a court confirmation sale
What the court is really looking for is that the executor protected the asset, exposed it to the market, and got a fair price. That’s why I document the marketing, the showings, every offer received, and the comparable sales, even on full-authority sales where the judge will never see it. If an heir objects later, that file is what protects the executor.
Disclosures, Inspections, and the As-Is Question
A sale by an executor in the course of administering an estate is exempt from California’s Transfer Disclosure Statement, which surprises a lot of buyers. That doesn’t mean the estate can hide problems. The executor still has to disclose material facts they actually know, and in Silicon Valley most buyers will want inspections regardless. In my practice I almost always order a pre-listing home inspection and termite report for probate homes, because an older house with a 1960s electrical panel or a cracked sewer lateral is going to be discovered anyway, and it’s far better for the estate to price it in up front than to renegotiate in escrow.
When the Heirs Don’t Agree
Disagreement among heirs is the single biggest cause of delay I see in probate sales. One sibling wants to keep the house, another needs the money now, and a third lives in another state and doesn’t trust anyone. Under full IAEA authority, any heir can object to the Notice of Proposed Action, which forces the sale into court. An heir can also offer to buy the house, which is possible but has its own rules. I cover both situations in when heirs disagree about selling a probate house and can an heir buy the house from a probate estate, and my earlier article on sibling conflict during a parent’s home sale covers the family dynamics.
Taxes on a Probate Sale
The good news for most heirs is that the house receives a stepped-up tax basis equal to its value on the date of death. If Mom bought the house in 1974 for $48,000 and it was worth $1,800,000 when she died, the estate’s basis is $1,800,000, and a sale for $1,850,000 creates only about $50,000 of gain before selling costs, which often wipes it out entirely. Property taxes are a separate question tied to Prop 19, which matters mainly if an heir wants to keep the house. The details are in capital gains tax on selling an inherited house in probate and my Prop 19 guide for Silicon Valley families.
For Best Results
Mistakes I See Executors Make
- Signing a purchase contract before Letters are issued. The executor has no authority yet, and it creates problems with title and with the court.
- Letting the house sit vacant without telling the insurance company. A burst pipe in an uninsured vacant house can cost the estate tens of thousands of dollars.
- Renovating on the estate’s dime. Big remodels before a probate sale rarely pay back in this market, and the executor carries personal risk if the money isn’t recovered.
- Not asking for full IAEA authority. If the petition doesn’t request it, or an heir objects to it, every sale goes to court.
- Distributing money early. Until the creditor period passes and the court approves distribution, sale proceeds stay in the estate account.
- Letting a family member move in without an agreement. it’s very hard to sell a house with an heir living in it who doesn’t want it sold.
Frequently Asked Questions
Can you sell a house during probate in California?
Yes. Once the court issues Letters to the executor or administrator, the house can be sold before probate closes. With full IAEA authority the sale works much like a normal sale after a 15-day notice to heirs. With limited authority the sale must be confirmed by the court, where others can overbid.
How long does a probate sale take in Santa Clara County?
From filing the petition to closing on the house usually takes about 5 to 9 months, and the full probate from filing to final distribution usually takes 9 to 18 months, longer if heirs disagree or the court calendar is backed up.
Do probate houses sell for less?
Not necessarily. Full-authority probate sales that are prepared and marketed well sell at market value in my experience. Court confirmation sales can draw lower opening offers because buyers leave room for overbids, although open-court bidding sometimes pushes the final price up.
What is the minimum overbid in a California probate sale?
The first overbid must be at least 10 percent of the first $10,000 of the accepted bid plus 5 percent of the amount above $10,000. On a $1,650,000 accepted offer, the minimum first overbid is $1,733,000.
Does the 90 percent rule apply to every probate sale?
No. The requirement that the price be at least 90 percent of the appraised value applies to sales confirmed by the court. Under Probate Code section 10503, it doesn’t apply when the executor sells using full IAEA authority.
Who pays the realtor in a probate sale?
The commission is paid from the sale proceeds at closing, like any other sale. In a court confirmation sale, the judge approves the commission and may split it with an overbidding buyer’s agent.
Sources and Further Reading
- California Courts Self-Help Guide: Property After Someone Dies
- California Probate Code § 10503 (sales under independent administration authority)
- California Probate Code § 10300 (notice of sale for court-supervised sales)
- California Probate Code § 10311 (overbids at confirmation)
- IRS Publication 559, Survivors, Executors, and Administrators
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