NORMAL (NON-PROBATE) HOME SALES
You should not be surprised to know that California has extensive disclosure requirements for residential sales. The California Association of REALTORS® (C.A.R.) provides many Statewide Buyer and Seller Advisory
and the most inclusive, the Seller Property Questionnaire and the Transfer Disclosure Statement. These disclosures (anything from plumbing problems, to earthquake hazards and Megan’s Law
considerations) protect homebuyersfrom conditions of the property that may be known, but not disclosed by a seller and keep neighborhoods safe in many cases. The disclosures are available in a series of booklets that both buyers and sellers can use to understand what should be disclosed as they approach a real estate transaction. In addition to statewide disclosures, it is a good idea to check local regulations.
PROBATE SALES ARE DIFFERENT
If you are the personal representative (sometimes called the executor or administrator) working on behalf of a decedent’s estate, and you’re in charge of selling a home that’s in that estate, you are NOT required to give some of the California mandated disclosures to the buyer.
The idea of limiting the number and depth of forms and questions for selling a home in California is very tempting.
- The disclosures that the personal representative is exempt from in a probate sale are as follows, and each one has a plethora of questions and details to handle.
- The Transfer Disclosure Statement
- The Seller’s Property Questionnaire
- Earthquake Hazard Booklet
- Earthquake Hazard Questionnaire
- Natural Hazard Disclosure
- Smoke Detector Compliance
Note: The required disclosures are outlined in Civil Code Section 1102 et. Seq. and 1103 et. Seq. Disclosure requirements can change, and it is important to stay informed using sites like the Department Of Real Estate: http://www.dre.ca.gov.
- Meanwhile, the personal representative of the estate is not exempt from:
- Lead-Based Disclosure
- Data Base Disclosure (Megan’s Law)
- Water Heater Disclosure and Strapping
- And any known defects the personal representative is aware of.
These exemptions for a personal representative come from the context of having not occupied the property, and are thus not held to know what issues that particular property may have.
THE THING IS…
It is far better to reveal all ahead of time if you know of it. Not only is it good karma, but it is also much less costly and less stressful to disclose all you know before the sale, rather than after the transaction is closed (or almost closed), and you’re standing in a courtroom in front of an arbitrator or judge.
If there is a need to disclose particular issues, above and beyond what is normally required during a probate or trust sale, such disclosures are typically done on an addendum to the final contract.
AT THE END OF THE DAY…
If you are acting as a personal representative,it’s best to reveal what you know. You will have a contented buyer, a happy probate real estate agent, and a good feeling that you did the right thing for the estate (maybe your mom and dad, or a close relative).
If you have questions about disclosures in real estate transactions, particularly in the probate or trust context, please contact us
DISCLAIMER: This content is meant purely for educational purposes. It contains only general information about real estate and/or legal matters. It is NOT legal advice and should not be treated as such. We recommend consulting a legal or tax professional before acting on any advice, opinion, or point of view described herein.