Probate Sales in California: Court Confirmation and Overbids, for Listing Agents

A California probate sale has to be reported to and confirmed by the court unless the personal representative holds full IAEA authority and no written objection is made (Probate Code sections 10308, 10511 and 10589). In a confirmed private sale, the accepted offer must be at least 90% of an appraisal made within a year of the hearing, and another bidder can top it in court (sections 10309 and 10311).

Below: which path the estate is on, what the court checks, the overbid formula with the arithmetic shown, how commissions are set when the buyer changes in court, and the Santa Clara and Alameda local rules. This is a guide to the code, not legal advice. On a specific estate, talk to your broker or a California real estate attorney, and to the estate's attorney. Statutes and county rules as read on 13 October 2026.

First question on any probate listing: what authority does the representative have?

Get one fact in writing before you set expectations with anyone: what authority the court gave the personal representative.

• Full authority. Probate Code section 10511 says a representative with full authority "has the power to sell or exchange real property of the estate." Under section 10503, the court-confirmation requirements then do not apply: no published notice of sale, no court approval of agents' and brokers' commissions, no 90% floor, and no court examination of the price.
• Limited authority. Probate Code section 10501 says a representative with only limited authority must obtain court supervision for a sale of real property. The listing goes the court-confirmation route.
• No independent authority. Section 10308 applies: the sale is reported to and confirmed by the court before title passes to the buyer.

A full-authority sale has its own notice step. Under Probate Code sections 10585 and 10586, the representative gives a Notice of Proposed Action at least 15 days before the date set in it, stating the material terms of a real property sale, including the price and the agent's or broker's commission (or how it is calculated). Everyone who receives that notice will read your commission there.

One written objection changes the route. Under Probate Code section 10589, if the representative has notice of a written objection, the sale can go ahead only under the court-supervision rules. A full-authority listing can end up in a confirmation hearing; say so at the listing appointment.

What court confirmation adds to the sale

On a court-supervised sale, four rules change how you market and write the offer.

• Published notice, in most cases. Probate Code section 10300 says that, except as provided in sections 10301 to 10303 and 10503, estate real property may be sold "only after notice of sale has been published pursuant to Section 6063a of the Government Code." Under section 10303, the representative may sell with or without notice where the will directs the sale or gives authority to sell, and the sale still goes to the court for confirmation (section 10308). Santa Clara County's rules call the published notice "a solicitation for offers" (more on the county rules below).
• The 90% floor. Under Probate Code section 10309, on a private sale the property must have been appraised, with a valuation date, within one year before the confirmation hearing, and the offer must be at least 90% of the appraised value as determined by that appraisal. Measure against the appraisal, not the list price.
• A price review. Probate Code section 10310 says the court "shall examine into the efforts of the personal representative to obtain the highest and best price for the property reasonably attainable," and any interested person may file written objections at or before the hearing. Keep your marketing record: it is evidence of that effort.
• No title until the judge says so. Section 10308 is plain: title does not pass to the buyer until the court confirms the sale.

The paperwork the court sees is the statewide court form DE-260, the Report of Sale and Petition for Order Confirming Sale of Real Property. It has lines for the amount bid, the deposit, and "10% of first $10,000 of original bid", which is the start of the overbid calculation below.

The overbid math, with the arithmetic shown

Probate Code section 10311 sets the minimum for the first higher offer in court. It must be at least 10% more on the first $10,000 of the original bid and 5% more on the part of the original bid above $10,000, and it must come from "a responsible person."

On an accepted offer of $800,000:

1. 10% of the first $10,000 = $1,000.
2. The part above $10,000 is $800,000 − $10,000 = $790,000. 5% of $790,000 = $39,500.
3. Minimum first overbid = $800,000 + $1,000 + $39,500 = $840,500.

Three more parts of section 10311 matter to the listing side:

• The highest qualifying offer wins, unless the court starts over. If several overbids qualify, the court "shall accept the highest such offer." It may also, in its discretion, decline it and order a new sale.
• Cash and credit are not freely compared. When the sale returned for confirmation and the higher offer differ on cash versus credit, the court may not consider the higher offer unless the personal representative tells the court, in person or through counsel, before confirmation that the higher offer is acceptable.
• Commissions are left out of the comparison. The court compares the original bid and any higher offer without regard to any commission an agent or broker may be owed under a contract with the personal representative.

For your seller, the accepted contract is the floor the bidding starts from. For your buyer, their price is on the petition and any responsible person can top it.

How commissions work when the buyer changes in court

The Probate Code sets the commission rules. Start with the baseline.

• The sale must close. Under Probate Code section 10160, the estate is not liable for a commission unless an actual sale is made, it is confirmed by the court where confirmation is required, and the sale closes.
• The court sets the amount. Probate Code section 10161 says the commission is what the court "determines to be a reasonable compensation," and if you have a contract with the personal representative, it cannot exceed the amount in that contract.
• Agent as buyer. Probate Code section 10160.5 says the estate is not liable for a commission where the agent or broker, directly or indirectly, is the purchaser, or where the buyer's agent has any interest in the purchaser.

Then the overbid cases:

• Original bidder had no agent; the winning bidder did. Probate Code section 10162 caps the winning buyer's agent at one-half of the difference between the original bid and the successful bid. Using the numbers above, $840,500 − $800,000 = $40,500, so that agent's pay cannot exceed $40,500 ÷ 2 = $20,250. The cap does not limit the broker who holds the exclusive right to sell under section 10150. Section 10165 can also apply in this case when a broker holds the exclusive right to sell, so confirm the split with the estate's attorney before the hearing.
• The original bid came through another agent, or a broker holds the exclusive listing. Under Probate Code section 10165, which applies when the original bidder was procured by another agent, or had no agent while another broker holds the exclusive right to sell, the agent who procured the winning buyer is paid one-half of the commission on the original bid and all of the commission on the difference between the original bid and the confirmed price.
• A commission written into the bid. Probate Code section 10166 says only the compensation proper under the code is allowed, and the bidder is bound by the court's acceptance even if the court allows less than the bid specified.

Any other combination is a question for the estate's attorney before the hearing.

Local rules: Santa Clara and Alameda counties

Two Bay Area courts add local rules that change how you prepare.

Santa Clara County (Probate Rules):

• Rule 7 A: the published notice of intention to sell "is a solicitation for offers," and no offer can be accepted before the notice period in that notice expires. Publication is not required where the representative uses the Notice of Proposed Action procedure under IAEA.
• Rule 7 B: the petition for confirmation should be filed within 30 days after a contract is accepted, and a copy of the contract of sale must be filed with it.
• Rule 1 E: telephonic appearances are not permitted at hearings on petitions to confirm the sale of real property.
• Santa Clara's published probate rules contain no rule we could find on an overbid deposit or bidding increments. Do not assume the Alameda deposit applies; ask the estate's attorney.

Alameda County (Local Rules, Title 7):

• Rule 7.310: every bid must come with at least 10% of the amount bid, and an overbidder in court must bring 10% of the minimum overbid in cash, money order or certified check. On the example above, that is 10% × $840,500 = $84,050.
• Rule 7.320: "extraordinary costs" such as termite and other repairs, lender's points, loan fees and nonrecurring closing costs are deducted from the gross bid. The net figure is used for the 90% test, the base for overbids and the broker's commission. Illustration: an $800,000 bid with $20,000 of termite repairs counted as extraordinary costs nets $780,000, so the base for overbids is $780,000, and the minimum overbid figured on that net base is $780,000 + $1,000 + 5% × $770,000 ($38,500) = $819,500.
• Rule 7.330: notice of the confirmation hearing must be mailed at least 15 days before the hearing to all heirs and beneficiaries who may have an interest in the property.
• Rule 7.340: potential bidders and their representatives must appear when the petition for confirmation is heard.

For a property in any other county, read that court's local probate rules before you write the offer.

Trust sales and disclosures

The rules above govern a personal representative selling estate property. A trustee is a different seller, and this guide does not cover whether any court step applies to a trust sale; ask the trust's attorney before you tell beneficiaries how it will run.

On disclosures, Civil Code section 1102.2 exempts two groups of sales from the Transfer Disclosure Statement:

• Court-ordered sales, "including, but not limited to, sales ordered by a probate court in the administration of an estate" (section 1102.2(b)).
• Sales by a fiduciary in the administration of a trust, guardianship, conservatorship or decedent's estate (section 1102.2(d)). This one has an exception: it does not apply if the trustee is a natural person who is trustee of a revocable trust and is a former owner of the property or lived in it within the preceding year.

A TDS exemption covers one form, not disclosure in general. Ask your broker what you still owe a buyer on an estate or trust property sold as-is.

A checklist for the listing file

The listing-file checklist (7)

1. Authority in writing. Full, limited or none, from the estate's attorney (Probate Code sections 10501 and 10511).
2. Appraisal date. Within one year before the expected hearing date, or the 90% test fails (section 10309).
3. Offer at or above 90% of that appraised value, net of any extraordinary costs if the property is in Alameda County (Rule 7.320).
4. Notice timing. On a court sale, published notice completed before the sale date the notice names, unless the will directs or authorizes the sale (sections 10300 and 10303), and in Santa Clara no acceptance before the notice period ends (Rule 7 A). On an IAEA sale, a Notice of Proposed Action at least 15 days out (section 10586).
5. Commission in the listing contract. The court can allow less, not more (section 10161).
6. A buyer who can appear where the local rules require it, with the deposit the county requires.
7. The overbid figure, calculated in advance (section 10311), so seller and buyer both know it before the hearing.

Every agent guide in this series is collected on our page for agents.

Probate confirmation and overbids: short answers

Does a probate sale in California always need court confirmation?

Court confirmation is required for a probate sale of real property unless the personal representative has full IAEA authority (Probate Code sections 10308, 10503 and 10511). With only limited authority, section 10501 still requires court supervision, and a written objection to a full-authority sale sends it back to the court-supervision rules under section 10589.

How do I calculate the minimum overbid in a California probate sale?

The minimum first overbid under Probate Code section 10311 is the accepted offer plus 10% of its first $10,000 plus 5% of the amount above $10,000. On an $800,000 accepted offer, that is $800,000 + $1,000 + $39,500, so the first overbid must be at least $840,500.

Is the 90% rule measured against the list price?

The 90% test in Probate Code section 10309 is measured against appraised value, not list price. On a private sale, the property must have been appraised within one year before the hearing, and the offer must be at least 90% of the value that appraisal sets. On a full-authority IAEA sale, section 10503 says the 90% floor does not apply.

Who gets the commission when an overbidder wins in court?

The court sets the commission as reasonable compensation, capped at the listing contract (section 10161). Where section 10165 applies, the winning buyer's agent gets half the commission on the original bid and all of it on the increase. With no agent on the original bid and no exclusive listing, section 10162 caps that agent at half the increase.

Can a buyer's agent write a commission into a probate bid?

A commission written into the bid does not bind the court. Probate Code section 10166 allows only the compensation proper under the code, and the bidder stays bound to the purchase even if the court allows less than the bid specified. Tell your buyer this before the offer is written, not at the hearing.

Do bidders have to appear at the confirmation hearing?

The appearance rules below come from county local rules. Alameda County Rule 7.340 requires potential bidders and their representatives to appear when the petition is heard, and Rule 7.310 requires an in-court overbidder to bring 10% of the minimum overbid. Santa Clara County Rule 1 E does not permit telephonic appearances on petitions to confirm a sale.

Working an estate listing?

Send us the address. We buy houses in any condition, vacant or occupied. Whether the sale runs on a Notice of Proposed Action or through a confirmation hearing is a question for the estate's attorney.