Lake County News, California – Estate Planning: Selling or Gifting Real Estate as a Legal Representative

Dennis Fordham. Courtesy photo.

A person authorized to act as a representative is a trustee and must comply with certain fiduciary (legal) obligations.

The application of duties varies according to the legal authority granted and the situation.

Agents, custodians, trustees, personal representatives and even spouses (in relation to their spouses) are all trustees.

Let’s see how these trustees can sell or give away real estate using their fiduciary powers.

First, an attorney may be authorized by a written power of attorney to sell or give away real estate belonging to the principal (whom he represents).

The power of attorney must specifically authorize the agent to sell and / or give away the property, if applicable, and must specifically state the property subject to this authorization; Ownership companies require that the legal description of the property be included in the power of attorney.

The original of the power of attorney (or a copy certified by a notary public) must be registered with the registrar of the county where the real estate is located soon after its execution (to be respected by title companies). Gifts of the agent to themselves are prohibited, unless the power of attorney specifically authorizes it and waives the agent’s obligation not to self-treat.

Second, in California, Custodians are appointed by the Superior Court to manage the affairs of the person and / or estate of a Custodian (i.e., a retained person). Guardianship arises because of the curator’s severe physical and / or mental disabilities or his severe inability to avoid fraud, coercion or undue influence.

Once appointed, the court issues “letters of guardianship” to the curator. If the letters grant “independent powers” (under Article 2590 of the Succession Code), the registrar can sell the registrar’s real estate, other than the registrar’s personal residence, without court confirmation.

Certified copies of the letters must be registered with the county where the property is located prior to the sale. If an attorney’s personal residence is sold, a court order approving the sale must also be registered.

In order for a registrar to donate the real estate of the registrar, the registrar must first apply to the court for an order of substituted judgment (under Article 2580 of the Succession Code).

A substitute judgment proceeding requires notice to certain people, a petition to court and a hearing (which can be contested), and, if successful, an order authorizing the action.

A certified copy of the court order of substituted judgment and a certified copy of the letters must be filed with the registrar of the county where the building is located.

Third, in California, personal representatives of a deceased’s estate are appointed by the superior court and act as court officers to represent and manage a deceased’s estate.

Once appointed, the court issues the registrar either “letters of testament” (to an executor) or “letters of administration” (to an administrator), “letters”, as the case may be.

If the letters give the personal representative “full powers” ​​(and not “limited powers”), under section 10400 and. that is. of the Succession Code, the personal representative can sell the property of the deceased without judicial confirmation (approval).

To sell using “full powers,” a certified true copy of the letters by the court must be registered with the county where the property is located and the signed consents (or signed waivers) by the heirs or beneficiaries of the estate. (if applicable) – in response to timely notice of proposed action regarding the sale – must be filed with the superior court overseeing probate.

Fourth, in California, in addition to the sale of the married couple’s family home, a single acting spouse may, in the best interests of both spouses, sell real estate that is their communal property in limited circumstances.

Nonetheless, the written consent of the other spouse, or a court order, is still required to donate real estate or sell the family home and to sell any real property of a retained spouse. Having a trust or power of attorney is better planning.

The above is a limited discussion and does not constitute legal advice. If you need advice on such matters, consult a qualified lawyer.

Dennis A. Fordham, lawyer, is a state bar certified specialist in estate planning, probate and trust law. His office is located at 870 S. Main St., Lakeport, California. He can be reached at This e-mail address is protected from spam. You need JavaScript enabled to view it. and 707-263-3235.