Two families lose a parent in the same month. Each inherits a similar house in the same neighborhood.
- The first family lists the house within a few weeks and closes without seeing a judge.
- The second family waits months for a court appointment, sends formal notices to every heir, and may need a court hearing before the sale can close.
The difference usually isn’t the house or the family. It’s how the house was titled when the owner died. A house held in a living trust is sold by a successor trustee, generally without court involvement. A house in the owner’s individual name usually goes through probate, and a court-appointed personal representative sells it under court rules.
This page compares the two paths so you can tell which one applies and what to expect from the sale.
Tell Us About Your Property
Probate Property vs. Trust Property in California
Prefer to listen? This short audio summary explains the difference between probate property and trust property in California. Learn how a court-appointed executor or administrator manages probate assets, while a successor trustee manages real estate that was properly transferred into a living trust.
The audio also explains why the recorded deed is important, how a trust may avoid formal probate, and why the sale procedures, notices, court involvement, and fiduciary responsibilities can differ. Listen to the overview below, then read the complete guide for additional information about California probate and trust property.
Audio length: Approximately 1 minute
Presented by: EZ Casa Buyer
Topic: Differences between California probate property and trust property
Quick Answer
| Probate property | Trust property | |
|---|---|---|
| Who sells | Court-appointed personal representative (executor or administrator) | Successor trustee named in the trust |
| When they can act | After the court issues Letters | Generally once the trustee accepts the role and title documents are in order |
| Court involvement | Yes: petition, appointment, notices, sometimes a confirmation hearing | Generally none, unless a dispute or question goes to court |
| Notice to family | Notice of Proposed Action (15 days) or court confirmation, depending on authority | Trustee notification after the death, with a 120-day window to contest the trust |
| Typical timing | Often many months before a sale can close | Often much sooner |
| Fees | Statutory fees for the representative and attorney, set by law | Reasonable trustee and attorney fees, generally not set by formula |
| Public record | Court filings are public | Trust administration is generally private |
| Buyer overbidding | Possible at a court confirmation hearing | Not part of the process |
The rest of this page explains each difference and the situations where the lines blur.
Step One: Figure Out How the House Was Titled
The deed controls. A will or trust document on its own doesn’t. Check the most recent recorded deed, which is available from the county recorder or through a title company.
- Titled to the trust. For example: “Jane Smith, Trustee of the Smith Family Trust dated May 4, 2010.” The house is generally trust property.
- Titled in the owner’s individual name. For example: “Jane Smith, a widow.” The house is generally a probate asset, unless another transfer method applies.
- Joint tenancy, community property with right of survivorship, or a transfer-on-death deed. The house may pass to the survivor or beneficiary with neither probate nor trust administration.
Our guide on whether all estates go through probate in California explains each of these paths.
The Most Common Problem: A Trust That Was Never Funded
Many people sign a living trust but never record a deed moving the house into it. The trust exists, but the house doesn’t belong to it. Refinances cause a similar problem: some lenders required the house to be taken out of the trust, and it was never put back.
When that happens:
- The house may need to go through probate, often under a “pour-over” will that sends probate assets into the trust at the end.
- The trustee may be able to ask the court to confirm the house belongs to the trust without full probate. This is often called a Heggstad petition, brought under Probate Code §850. It requires notice to interested parties, commonly 30 days.
- A simplified court procedure may apply for some smaller estates or primary residences. The dollar limits change periodically.
Which route fits depends on the documents. The trust’s attorney can review the trust, the will, and the deed history.
Who Has Authority to Sell
In Probate: The Personal Representative
A personal representative has no power to act until the court appoints them and issues Letters. That’s true even for someone named as executor in the will. Their authority to sell then depends on whether they received full or limited authority under the Independent Administration of Estates Act. Our page on who can sell a probate house in Californiaexplains each type of representative.
In a Trust: The Successor Trustee
The trust document names who takes over when the person who created it (the settlor) dies. Most living trusts give the trustee broad power to sell real property. The trustee doesn’t need Letters or a court order. Before a sale, title companies typically ask for:
- a certification of trust or a copy of relevant trust pages,
- the death certificate, and
- a recorded document, often an affidavit, showing the successor trustee has taken over.
The trustee still has to follow the trust’s terms. Some trusts require co-trustees to act together, or require beneficiary consent for certain actions. Read the trust before signing a listing agreement.
Court Involvement
Probate Sales
Probate is a court process from start to finish:
- a petition to open the estate,
- appointment of the representative,
- a probate referee’s appraisal of the property,
- notice to heirs before a sale, and
- final court approval of distribution.
With full IAEA authority, the representative can usually sell after sending a Notice of Proposed Action to the heirs at least 15 days before the sale. If an heir objects, the sale must go through court supervision.
With limited authority, or after an objection, the sale requires a court confirmation hearing. At the hearing:
- the offer must generally be at least 90 percent of the referee’s appraised value, and
- other buyers can overbid.
Trust Sales
A trustee generally sells without any court involvement. There’s no confirmation hearing, no overbidding, and no court-ordered minimum price.
That doesn’t mean anything goes. A trustee owes fiduciary duties to the beneficiaries, including acting loyally, prudently, and impartially. Many trustees get an independent appraisal and market the property properly to show a fair price.
A beneficiary who believes a trustee is acting improperly can petition the probate court for instructions or to stop an action. A trustee can also choose to seek court approval for a sale, which can be useful when a dispute is likely.
Notice to Family Members
Probate
Heirs and beneficiaries receive notice of the probate petition and hearing. Before a sale under full IAEA authority, they receive a Notice of Proposed Action and have at least 15 days to object. Anyone who doesn’t object is generally treated as consenting.
Trust
After the settlor dies and the trust becomes irrevocable, the trustee must serve a trustee notification on the beneficiaries and the settlor’s heirs, generally within 60 days. The notice must warn recipients that they generally have 120 days from service to contest the trust, or 60 days from delivery of a copy of the trust terms if that’s later.
This notice isn’t permission to sell. A trustee can often sell before the 120 days run. Many trustees wait, or at least hold off on distributing the proceeds, if a trust contest seems possible. The trust’s attorney can advise on timing.
Trustees can also use their own notice-of-proposed-action procedure to tell beneficiaries about a planned sale. The trust procedure has a longer notice period than the probate version.
Timelines
Probate: Opening the estate, getting appointed, and receiving Letters often takes several months on its own, depending on the county. A court confirmation hearing adds more time. In busy courts like Los Angeles, the full probate process commonly runs a year or more. See our page on how long probate takes in Los Angeles.
Trust: Once the successor trustee has the death certificate and title documents in order, a sale can often move on a normal real estate timeline, sometimes within weeks of the death. Delays usually come from:
- finding documents,
- disputes among beneficiaries,
- the property’s condition, or
- a trust that turns out to be unfunded.
Costs
Probate Fees
California sets the personal representative’s and attorney’s ordinary compensation by statute, as a percentage of the estate’s value. That value is generally measured by the gross value of estate property, not the equity after the mortgage. Extra work, such as litigation or managing a sale through court confirmation, can support additional “extraordinary” fees with court approval. Court filing fees and the probate referee’s fee apply too.
Trust Administration Costs
Trustees are generally entitled to reasonable compensation, and attorneys are paid for their work, usually by the hour or by agreement. There’s no statutory percentage. Costs are often, though not always, lower than in probate, especially for simple estates.
In both paths, the normal costs of selling (commissions if listed, escrow, title, and transfer taxes) still apply.
Disclosures When Selling
This is a detail many trustees miss.
Probate sales. Sales by a personal representative administering a decedent’s estate are generally exempt from California’s standard Transfer Disclosure Statement (TDS).
Trust sales. Sales by a trustee administering a trust are also generally exempt from the TDS, with one exception: the exemption doesn’t apply when the trustee is an individual trustee of a revocable trust who is a former owner of the property or lived in it within the preceding year.
For example, a surviving spouse who is trustee of the couple’s revocable trust and lived in the house generally can’t rely on the trustee exemption. The same can apply to an adult child who lived in the house with a parent and now serves as trustee. The trust’s attorney or listing agent can confirm which forms apply.
In both paths, other disclosures can still apply, such as the federal lead-based paint disclosure for homes built before 1978. Neither path allows hiding known material defects. Our page on how to sell a probate property as-is covers disclosures in more detail.
Creditors
Probate has a formal creditor process. Creditors are notified, and claims generally must be filed within a set period, typically four months after Letters issue. The representative pays valid debts before distributing to heirs.
Trusts have an optional creditor-claim procedure that a trustee can use to cut off late claims. Without it, trust assets can remain exposed to the settlor’s creditors for a longer period. In both paths, sale proceeds are often held back until debts are handled.
Disputes Among Family Members
Probate: Disagreements about a sale are handled within the probate case, most often through objections and court confirmation. See what happens if an heir refuses to sell a probate property.
Trust: Beneficiaries don’t get a Notice of Proposed Action veto by default. If a beneficiary believes the sale is improper, they can petition the probate court. A trust contest challenges the trust itself, often over capacity or undue influence, and is subject to the 120-day deadline after proper notice.
In both paths, once a house is distributed to several beneficiaries as co-owners, disagreements become co-owner disputes. Our page on whether multiple heirs can sell together covers partition.
What’s the Same in Both Paths
- The house can be sold as-is. Neither path requires repairs before sale.
- Tenants keep their rights. Leases continue after the owner’s death. See selling a probate property with existing tenants.
- The mortgage stays attached until paid off. See what happens to the mortgage on a probate property.
- Code violations follow the property. See selling a probate property with code violations.
- Tax rules are generally the same. Property tax reassessment rules, including Proposition 19’s parent-child rules, and federal income tax basis rules generally apply either way. Talk to a tax professional about your situation.
When a Family Has Both
It’s common for a family to have a trust and a probate case. For example:
- the trust holds the house, but a bank account in the parent’s name goes through probate, or
- a second property bought after the trust was signed was never transferred into it.
Each asset follows its own path. The same person often serves as both trustee and executor, which helps coordination, but the rules for each asset are still separate.
A Southern California Example
This example is hypothetical.
Two sisters inherit their father’s home in Torrance. He signed a living trust in 2005 and recorded a deed into it. In 2012, he refinanced, and the lender had him deed the house back to himself individually. It was never deeded back into the trust.
After his death, the older sister, named successor trustee, plans to list the house. The title company flags the problem: the house is in her father’s individual name.
The trust’s attorney reviews the documents and recommends a Heggstad petition asking the court to confirm the house belongs to the trust, based on the trust’s schedule of assets. After notice and a hearing, the court grants the petition. The sister then sells as trustee, without full probate administration, a few months later than she’d planned.
If the trust documents hadn’t supported that petition, the house would likely have gone through probate under the father’s pour-over will.
How EZ Casa Buyer Can Help
We buy inherited homes throughout Southern California, whether a successor trustee or a court-appointed personal representative is selling. We work within each process:
- For trust sales, we coordinate with the trustee and title company on the trust documents.
- For probate sales, we follow the Notice of Proposed Action or court confirmation process, including overbidding at a hearing.
A typical process looks like this:
- You tell us about the property and whether it’s held in a trust, going through probate, or you’re not sure.
- We review the situation and, with your permission, the title information.
- We may visit the property or ask for more information.
- If the property fits what we buy, we prepare a written offer.
- You review it, with the trust’s or estate’s attorney and the beneficiaries if you choose, without pressure.
- If accepted, the sale moves through escrow under the rules for your path.
- We coordinate the closing date around the trust or probate timeline.
If a traditional listing looks like the better fit, we’ll tell you.
Request a Property Review
Frequently Asked Questions
Does a house in a living trust go through probate?
Generally, no. If the house was properly titled in the trust, the successor trustee can usually sell or distribute it without probate.
My parent had a trust. Why does the house need probate?
Usually because the house was never transferred into the trust, or was taken out during a refinance and never put back. A court petition or probate may be needed to move it into the trust or to a buyer.
Can a successor trustee sell a house without the beneficiaries’ approval?
Often, yes, if the trust gives the trustee power to sell. The trustee must still act in the beneficiaries’ best interests and follow the trust’s terms. Some trusts require consent for certain actions.
Does a trust sale need court confirmation?
Generally, no. There’s no confirmation hearing or overbidding. A trustee can choose to ask the court for approval when a dispute is likely.
How soon can a trustee sell the house after a death?
Often within weeks, once the trustee has the death certificate and the title documents are in order. Some trustees wait, or hold off on distributing proceeds, if a trust contest seems likely.
What is the 120-day trust notice?
After a settlor’s death makes a revocable trust irrevocable, the trustee must serve a notification on beneficiaries and heirs. It warns that they generally have 120 days to contest the trust, or 60 days after receiving a copy of the trust, if later.
Is selling a trust property cheaper than selling a probate property?
Often, because trusts avoid probate’s statutory fees and court costs. Costs depend on the trust’s complexity, the trustee’s and attorney’s fees, and any disputes.
Do trustees have to fill out a Transfer Disclosure Statement?
Usually not, but there’s an exception. An individual trustee of a revocable trust who owned or lived in the property within the past year generally can’t use the trustee exemption.
Can property be in both a trust and probate?
Different assets can be. The house may be in the trust while other assets go through probate, or the reverse.
Who should I call first: a probate attorney or a real estate agent?
Usually an attorney, to confirm which path applies and what documents are needed. Then bring in a real estate professional or buyer.
Where to Go From Here
The first question is always the same: how was the house titled when the owner died? Once you know that, the path becomes clear. Probate means a court-appointed representative and court rules. A trust means a successor trustee and the trust’s terms.
If the house is in probate, start with how to sell an inherited house in probate. If it’s in a trust and needs work, our page on how to sell a probate property as-is covers condition and disclosure issues that apply to trust sales too.
When you’d like to talk through the property, whether it’s in probate or in a trust, we’re here.