Frequently asked questions

What Is a Short Sale?


A short sale occurs when the bank allows you to sell your home for less than the amount you owe. A short sale is a privilege granted by the bank. It is not a right. Not every bank will allow you to do a short sale.




Should We Choose a Short Sale Over a Foreclosure?


In some cases, it might be easier to let a home go to foreclosure than endure the struggle and stress of a short sale. Whether you should consider foreclosure may depend on the financial and legal consequences of a foreclosure.

You should always, without fail, get legal and tax advice because real estate agents, unless licensed to practice law, cannot provide it.




How Can a Seller Get Multiple Offers on a Short Sale?


One sure-fired way to get multiple offers is to price your short sale below market value. There are other ways to get buyers bidding over each other for your home.

Beware of pricing your short sale too low because a) the bank is unlikely to take a low bid and b) some buyers might get confused and make lowball offers




Should We Stop Making Our Mortgage Payments to Do the Short Sale?


It is a myth that you must be in default, behind in your payments, to do a short sale. However, there are certain situations in which your payments must be delinquent. Most of those involve government loans because yes, in some cases, the government wants you to stop making your mortgage payment. Scary, huh?




Will the Bank Come After Us for the Difference?


Yet another reason to get legal advice. One of the main reasons to do a short sale is to get a release of personal liability, yet not every seller is released. Some loans carry a personal guarantee in some states. Some hard-money loans in certain states allow for deficiencies. Absence of verbiage pertaining to a deficiency in an approval letter doesn't necessarily mean the seller is released




Will a Short Sale Ruin My Credit Rating?


According to FICO, the biggest hit to your credit rating seems to be when there is a deficiency remaining. With a deficiency, the affect on credit for a short sale is almost identical to that of a foreclosure.

Without, it's less. Lenders typically report a short sale on your credit report as "paid in full for less than agreed," but there are other reporting options.




How Can We Do a Short Sale With Two Loans?


You do a short sale with two loans the same way as a short sale with 3 loans and / or a bunch of liens. Individually negotiate. Typically, the lender in first position will allocate a small percentage of proceeds to junior lienholders. However, borrowers can also be asked to make a seller contribution.




Do We Need a Lawyer for a Short Sale?


If you have assets to shelter, disposable income and are facing personal liability for a loan, those are 3 excellent reasons to hire a lawyer to do a short sale. Unfortunately, if you ask a lawyer, a lawyer will say, yes, hire a lawyer. You do need legal advice.

Whether you need a lawyer to negotiate on your behalf depends on the complexity and particulars of your situation. Ask your agent or CPA and other trusted advisers.




Do We Need a Financial Hardship to Do a Short Sale?


In the beginning of short-sale mania this last go-around -- which started at the end of 2005 -- a financial hardship was an absolute criterion to qualify for a short sale. Given the astounding number of homes that are underwater and the need to dispose of loans without security, some bank investors will grant a strategic short sale.




Why Would the Bank Reject Our Short Sale?


Banks look for crucial elements to approve a short sale but perhaps the biggest motivator is whether the bank will make more money by granting a short sale over pursuing foreclosure. Sometimes, the bank won't tell you that it stands to profit far greater through foreclosure. It will simply state a price it wants that no buyer would ever pay. Sort of the chicken way out.




What is Probate?


Simply stated, Probate is a court supervised (legal) process to administer a Will. Probate is a process for assembling assets and paying debts. Probate allows the transfer of a deceased person’s assets to the decedent’s Heirs. This includes administering the Estate of someone who died Intestate, or without a Will. Probate takes place in the county where the decedent resided at the time of death.




What happens if someone dies with a or without a Will?


If someone dies with a Will, they are said to have died Testate. A Will typically names an Executor. The Executor “executes” the terms of the Will fulfilling the wishes and desires of the deceased person. The terms of the Will are validated as part of the Probate process.

What happens if someone dies without a Will?

If someone dies without a will, they are said to have died intestate. Without a Will, someone, typically a family member, or close friend, will need to Petition the Probate Court to be appointed Administrator of the Estate. Once appointed by the Probate Court, the Administrator’s role is to liquidate the Estate under the court’s supervision.




What is the difference between Administrator and Executor?


An Administrator is a person appointed by the Probate Court to administer the Estate of a person who died intestate, or without a Will. An administrator is also appointed by the Probate Court when a Will does not name an Executor, or if the person named as Executor in the Will is unwilling or unable to serve. An Executor is typically named in a Will and is appointed by the Probate Court to execute the terms of the decedent’s Will. The Administrator and Executor are commonly referred to as the Personal Representative, or PR.




What is an Administrator with Will Annexed?


This person is appointed by the Probate Court but is not the person who was named in the Will to act as the Executor. This court appointed representative administers the Estate of the decedent who died with a Will, under the Independent Administration of Estates Act (IAEA).




What is the Independent Administration of Estates Act (IAEA)?


The IAEA allows the Personal Representative to administer most aspects of a decedent’s Estate without court supervision. The authority to act under IAEA may be given by the Will or the Personal Representative may Petition the Probate Court for such authority. It is typically requested on the Petition to initiate Probate.




When does the Probate Process start?


The Probate Process starts when a petition is filed with the probate court. Either the Executor named in the Will, or usually a family member if there isn’t a Will, petitions the court to be appointed Executor or Administrator. Although a probate attorney is not required to start the probate process in California, most people do hire a probate attorney.




Can Probate be avoided?


If a decedent’s Estate meets the requirements of California Probate Code 13100 et seq., it may avoid Probate, allowing the transfer of personal property to be transferred directly to an Heir.




What is a trust?



A situation in which one person (or entity) holds the legal title to a property for the benefit of another.




What is a probate?



Probate is the court-supervised administration of a decedent’s estate. The probate proceeding involves “proving the will” (if there is a will), appointing the personal representative, determining the decedent’s assets that are subject to probate, paying outstanding debts and disbursing funds to the beneficiaries. In some cases, the decedent’s estate includes real property that must be sold under the court’s supervision.




Why do some probate properties not require court confirmation?


If a probate property is a Trust Sale or if the Executor/Administrator of the estate has been granted “full independent powers” under the Independent Administration of Estates Act (IAEA), the sale may not require court confirmation.

If the Administrator has full independent powers, he or she may elect to list the property for sale. Once an offer is accepted, the estate’s attorney mails out a Notice of Proposed Action stating the terms of the proposed sale to all the heirs. The heirs then have 15 days to object to the sale. If there is no objection within 15 days, the sale goes through without any court hearing required. (Regardless of the details of the probate transaction, sellers are strongly encouraged to work with a professional probate attorney to protect the estate’s best interests.)




What is a Property Profile?



A Property Profile is a report that provides details on a specific property. It contains information such as square footage, number of bedrooms and bathrooms, lot size, zoning information, use code, tax information and ownership information. Additionally, the profile has the recorded documents, such as the grant deed, quitclaim deed and copies of deeds of trust. The report can also contain sales comparable, school information and neighborhood information. A complete, current property profile is essential for setting the price of the real property and for determining problems that may interfere with the sale.




Should I make repairs before listing a probate property for sale?


No. In California, probate properties are sold “as-is.” If you make repairs you may inadvertently conceal something about the condition of the property. Even a coat of paint can unintentionally conceal a defect. Except for removing personal possessions, clearing out trash and cleaning up the entryway and yard, it is important to leave the property in its present state and let the buyers do their inspections and satisfy themselves as to the condition of the property.




What do I need to do to prepare the property for sale?



Your agent should be able to recommend a number of qualified specialists to help you prepare the property for sale, including removing belongings and obtaining professional cleaning. Your agent should also assist you in conducting an inventory of the real property for sale and in preparing a comprehensive property profile.




How can I choose the best list price?


Your agent should provide you with detailed market data, called a Market Value Analysis. This includes the selling prices of similar properties in the neighboring area. It will also include in-depth information on recent sales in the area, such as price per square foot and the number of days the property was on the market. Taking into consideration the information in the analysis as well as other intangibles of the market, your agent will be able to help you determine a listing price that is appropriate for the market and will attract the greatest number of qualified buyers.




Once a property is listed, how will it be marketed?


Your agent should pursue a number of strategies to expose your property to likely buyers. They include signage on the property, newspaper and internet advertising, direct mail, open houses for agents and the public and personal networking among successful agents who may represent qualified buyers. Your agent will conduct showings for interested buyers and their agents, will answer questions about the property and will continue to promote the property in order to secure the highest offer. Your agent should also communicate with neighbors in the immediate area, keeping them informed about the price and other details about the property. Ask your real estate agent for a written marketing plan and for explanations of how various types of marketing will benefit the sale.




Do I have to pay up front for all this marketing and advertising costs?



No, there should be no advertising or marketing up-front fees




Is the paperwork different in a probate sale than a traditional real estate transaction?


Yes. In most real estate transactions, the seller is required to disclose information about the property, including defects, construction conducted without a permit, evidence of pest or water damage, etc. Because sellers of real property through probate, trust or conservatorship may never have lived in the property that’s being sold, special disclosure forms take this into account. Probate and trust sales require special disclosures, listing agreements and purchase contracts. In California, the California Association of Realtors has standardized forms specifically for probate transactions.




How do you determine the minimum bid in court at the court confirmation hearing?



The minimum first overbid price is set by a statute in the Probate Code. Calculating the overbid assumes that there is an accepted offer on the property. The minimum overbid amount is 10% of the first $10,000 plus 5% of the balance of the accepted offer. The overbid must be presented in person by cashier’s check (no personal checks). If a property is highly desirable, there may be more than one overbidder. In that case, an overbid above the minimum would be to the advantage of the potential buyer. Here’s an example of how the overbid and deposit amount are determined:

EXAMPLE: A property is listed at $200,000. The accepted offer is $175,000.
The minimum overbid is calculated as follows:
Accepted offer = $175,000
+.10 x $10,000 = $1,000

+ .05 x $165,000 = $8,250
Minimum overbid = $184,250
x .10 = $18,425 amount of cashier’s check




Should I use the same agent who helped me sell my own house?



You are free to choose any real estate agent you like, but it is important to remember that probate real estate sales are complicated legal matters. Most real estate agents are not experienced or well-versed in the probate process. It makes sense to choose an agent who specializes in probate and trust real estate, and who understands the intricacies of pricing, marketing and presenting such properties. Your agent will represent your interests throughout the transaction; being able to understand and explain the process is essential.





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