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- An heir who is not the personal representative can buy the building as any buyer would, through a Notice of Proposed Action or a confirmation hearing.
- The personal representative and the estate's attorney are barred from buying estate property unless the Probate Code provides a way, such as a court order backed by written consent from every affected heir and devisee.
- Full authority does not remove the court from a sale to the personal representative. Section 10501 keeps it under court supervision, with one narrow exception.
- Other heirs who think the price is low can object to the notice, withhold consent, bid at a confirmation hearing or object to the appraisal.
Can an heir buy the building from the estate?
Yes. An heir who is not the personal representative buys the way any outside buyer does, and the estate's usual sale procedure tests the price. Sections 9880 and 10501, which restrict purchases by insiders, name only the personal representative and the personal representative's attorney.
Under full authority, the heir's accepted offer goes into a Notice of Proposed Action. Section 10585 requires it to state the price and the commission, and section 10586 requires it to reach every person entitled to it at least 15 days before the date it names. The other heirs and the beneficiaries whose interests the sale affects are on that list, so they see the heir's price before the sale can go ahead. Any of them can object and send it to court.
On the court route, the heir's offer is the one returned to the confirmation hearing. It has to reach 90 percent of an appraisal made within the year before the hearing, and anyone who wants the building more can overbid there. Section 10311 has the court accept the highest qualifying offer, whoever makes it.
An heir who plans to keep the building should also look at how Prop 19 treats it, since the Board of Equalization says a rental home passing from parent to child does not qualify for the exclusion.
Can the executor buy the building?
Only by one of the routes the Probate Code sets out. Section 9880 says that, except as its chapter provides, neither the personal representative nor the personal representative's attorney may purchase property of the estate or a claim against it, directly or indirectly. The chapter then opens these doors:
| Route | What it takes |
|---|---|
| Consent and a court order, section 9881 | Written consent signed by each known heir and each known devisee whose interest the purchase would affect, filed with the court, and a showing that the purchase is to the advantage of the estate |
| The will allows it, section 9882 | A will that authorizes the personal representative or attorney to buy the property, and a court order |
| A contract with the decedent, section 9884 | A written contract the decedent made during life that can be specifically enforced, with the requirements of the section 850 procedure met |
| An option in the will, section 9885 | An option to purchase given in the will, exercised under the Probate Code's chapter on such options |
For an order under section 9881 or 9882, section 9883 has the personal representative file a petition setting out the facts the request rests on. Heirs who agree can open the consent route, though the court still has to be shown that the purchase is to the estate's advantage. The same route gives each affected heir a veto, since an order under section 9881 needs every one of their signatures on file.
Does full authority let the executor skip the court?
For a sale to the executor, full authority does not help. Probate Code section 10501 lists actions that need court supervision whether the authority granted is full or limited, and a sale of estate property to the personal representative or to the personal representative's attorney is on that list. So the Notice of Proposed Action that carries an ordinary sale cannot carry this one.
The same section has a narrow exception for a transaction between the personal representative in that role and the personal representative as an individual. Every one of these conditions has to hold:
- The personal representative is the sole beneficiary, or all known heirs or devisees have consented.
- The period for filing creditor claims has expired.
- No request for special notice is on file, or everyone who filed one has consented.
- Every filed creditor claim has been paid, settled or withdrawn, or the creditor has consented.
Section 9880's bar is written separately from that exception. Before anyone relies on it, ask the estate's attorney how the two apply to your estate.
Can the building go to an heir without a sale?
Yes. An heir can receive the building itself as part of their share, in place of a share of sale proceeds, when the estate is distributed. That comes on the petition for final distribution, which Probate Code section 12200 requires within one year after letters, or 18 months when a federal estate tax return is due, unless the personal representative reports on the status of the estate instead. If one heir wants the building and the others want cash, work out how the shares balance with the estate's attorney well before that petition is drafted, since the appraisal on file is the value everyone will be comparing.
How is the price tested?
The starting point is the appraisal the probate referee made of the building's value on the date of death, which is filed with the court. Each route then tests an insider's price its own way. A Notice of Proposed Action puts the price in front of every heir who receives it. A confirmation hearing applies the 90 percent floor under section 10309 and opens the price to overbids under section 10311. A purchase by the personal representative under section 9881 has to be shown to be to the estate's advantage.
A made-up example shows the confirmation route. An heir offers $2,600,000 for a building appraised at $2,800,000. The floor is $2,520,000, so the offer can be confirmed. The first overbid has to add $1,000 on the first $10,000 and 5 percent of the remaining $2,590,000, which is $130,500, so a bid of $2,730,500 or more at the hearing can take the building from the heir.
A price that outside buyers have already tested is hard to argue with. Put the building in front of them before the heir's offer is signed, and the file then shows what they would pay, so the other heirs have their answer before anyone has to go to court for it.
What can the other heirs do if the price looks low?
Each route leaves them a way to act:
- On a Notice of Proposed Action, deliver a written objection under section 10587 before the later of the date the notice names and the date the sale is made, or serve a restraining order under section 10588. Section 10589 then sends the sale to the court-supervised procedure.
- On a proposed purchase by the personal representative under section 9881, decline to sign the written consent. Without every affected heir's signature, that route is closed.
- At a confirmation hearing, bid, or bring a buyer who will.
- If the dispute is about value, file a written objection to the appraisal under section 8906 at any time before the hearing on the petition for final distribution. The objector carries the burden of proof.
Each of those is a legal step, and the estate's attorney represents the personal representative, who may be the person buying. An heir with doubts should get their own advice before the date in the notice passes. Shaya Lowenstein is a real estate agent and is not a lawyer. He can put a number on what the building would bring from an outside buyer, and that is the number each of these steps turns on.