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Probate Court Confirmation and Overbids: A Buyer's Guide

By Matthew Martinez, Founder, CEO & Managing Broker, Diamond Real Estate Group. California DRE #01869679.

Probate court confirmation is the hearing at which a judge approves an estate’s sale of real property, and at which another buyer can outbid the one whose offer the estate accepted. Under Probate Code 10311, a qualifying overbid must exceed the accepted price by at least 10% of the first $10,000 plus 5% of the rest. In Sonoma County, the court’s mandatory bid form also requires a deposit of at least 10% to accompany the bid.

This page is written for buyers and investors: the original bidder whose offer goes to court, and the overbidder who shows up at the hearing. It covers timing, the bid math, what to bring, how financing and contingencies are treated, and how the court splits broker commissions. Executors and administrators should start with our guide to selling a house in probate in California, which covers the estate’s side.

When a probate sale goes to court

Not every probate sale has a hearing. A personal representative with full authority under the Independent Administration of Estates Act can usually sell after giving heirs a Notice of Proposed Action. A confirmation hearing is needed when the representative has only limited authority, or when someone objects to the proposed sale and it moves to court supervision.

Probate Code 10308 states the basic rule: except under that independent authority, a sale of estate real property must be reported to and confirmed by the court before title passes. Conservators and guardians use the same Judicial Council form, DE-260, to report a sale, so similar steps apply in conservatorship sales.

A property held in a living trust is different. A successor trustee usually sells without court involvement, as our guide to selling a house in a trust explains, so there is no overbid hearing.

From accepted offer to court order: the timeline

The listing may look like any other, but the contract is subject to the court’s approval. A typical sequence:

Offer accepted, subject to confirmation. The estate signs a purchase agreement that states the sale needs court confirmation.
Appraisal check. For a private sale, the property must have been appraised within one year before the hearing, and the offer must be at least 90% of that appraised value (Probate Code 10309). If the appraisal is stale or the court finds it too high or low, a new one can be ordered.
Report and petition filed. The estate’s attorney files a Report of Sale and Petition for Order Confirming Sale (form DE-260). If the personal representative doesn’t file within 30 days after the sale, the buyer may file it (Probate Code 10308).
Notice of hearing. Notice goes to the persons the Probate Code designates and to the purchaser named in the petition, and it is posted as the Probate Code requires.
The hearing. The judge reviews the sale, calls for overbids, and confirms the sale to the original buyer or the highest qualifying bidder.
Closing on the order. Escrow closes once the signed order confirming sale is delivered.

The court calendar sets the pace, so the hearing date is usually weeks after acceptance. Build your loan rate lock, rent-back or move plans around that date rather than a fixed escrow period.

The minimum overbid: how the math works

Probate Code 10311 requires the court to accept a higher offer made at the hearing if three things are true. The offer must clear the minimum increase, come from a responsible person, and comply with all provisions of law.

Accepted price	10% of first $10,000	5% of the balance	Minimum first overbid	Sonoma deposit (10% of bid)
$400,000	$1,000	$19,500	$420,500	$42,050
$650,000	$1,000	$32,000	$683,000	$68,300
$1,200,000	$1,000	$59,500	$1,260,500	$126,050

The figures are our arithmetic from the statutory formula. The statute sets only the first jump; the judge decides how bidding proceeds after that, and departments differ on the size of later increments. Ask the estate’s attorney how the assigned department runs bidding before the hearing day.

Three more rules in 10311 matter to bidders:

Highest offer wins. If several qualifying offers are made, the court accepts the highest and confirms to that bidder.
The court can decline. The judge may, in its discretion, refuse a qualifying higher offer and order a new sale instead.
Commissions don’t count. The court compares bid amounts without regard to broker commissions or any bid condition requiring the estate to pay part of the price to a broker.

What an overbidder brings to court

In Sonoma County Superior Court, an overbid is made on local form PR-14, Increased Bid in Open Court on Sale of Real Property, which the form marks as mandatory under Local Rule 6.7(a). The form asks the bidder to state:

The bid amount, which must beat the return of sale by the 10% and 5% formula.
The terms of sale, and which party pays for the title policy.
That a deposit of 10% or more accompanies the bid.
The licensed broker who procured the bid, if any, and that commission is payable according to law if the court confirms the sale to that bidder.
The purchaser’s name and how title will be vested, with the purchaser’s signature.

The completed bid is filed with the clerk before the order confirming sale is entered. The form doesn’t specify the type of deposit funds, so confirm in advance with the estate’s attorney or the court what form of payment it accepts. Napa, Marin and other counties have their own local probate rules; we have not reviewed their overbid forms for this page, so check the local rules of the county where the estate is open.

Financing, contingencies and buying as-is

Overbidding rewards buyers who can close on terms the estate will accept. Probate Code 10311(d) addresses financing directly. If the accepted sale is for cash and the higher offer is on credit, or the accepted sale is on credit and the higher offer is for cash or on different credit terms, the court may not consider the higher offer unless the personal representative tells the court, before confirmation, that it is acceptable.

That gives the estate, and its attorney, real influence over which overbids count. In practice, an overbid that tracks the original contract’s terms is easier to accept than one that adds a loan or inspection contingency. Discuss your terms with the estate’s broker before the hearing rather than at the counsel table.

Inspect early. Ask the listing broker for any reports and access before the hearing; once the court confirms, there is little room to renegotiate.
Know the disclosure rules. Civil Code 1102.2 exempts sales ordered by a probate court, and fiduciary sales in administering a decedent’s estate, from the article that requires the Transfer Disclosure Statement. Ask what reports the estate will provide, and read our page on as-is sales in California.
Check occupancy. Tenants’ rights survive the owner’s death; our guide to inherited rental property explains what a buyer takes on.
Line up funds. A loan that can’t close on the court’s timetable puts your deposit and the deal at risk; see our loan contingency guide for how lenders time approvals.

Default is costly. Under Probate Code 10350, if a confirmed buyer fails to complete the sale, the court can vacate the confirmation and order a resale. The defaulting buyer is then liable for the price difference, the expenses the breach caused and other consequential damages.

How broker commissions change when there’s an overbid

In a court-confirmed sale the judge, not the listing agreement alone, decides the commission. Probate Code 10161 lets the court allow reasonable compensation, capped at the amount in any contract with the personal representative, and Article 3 of the same chapter sets out how it is shared when an overbid wins.

Situation	Rule	Section
Original buyer had no broker; overbidder’s broker wins	That broker’s commission can’t exceed half the difference between the original and final bids, unless the broker holds the exclusive listing	10162
Listing broker holds the exclusive right to sell	Commission figured on the full confirmed price or only the original bid, depending on who represented the original and winning buyers	10162.5
Original and winning buyers have different brokers	Winning buyer’s broker gets half the commission on the original bid plus all of the commission on the increase; the other half goes to the original bidder’s broker or is shared with the listing broker	10165

An example, using a hypothetical court-allowed rate of 5%: Broker A’s buyer offers $650,000, and Broker B’s buyer wins at $700,000. Broker B receives $16,250 (half of 5% of $650,000) plus $2,500 (5% of the $50,000 increase). The remaining $16,250 goes to Broker A where no other broker holds the exclusive contract. Actual rates and splits are set by the order.

Because the commission comes out of the estate, not the bid, an overbidder’s broker doesn’t reduce the overbid amount the court compares. Diamond can represent you as a buyer’s broker at a hearing in the counties we serve.

Strategy for the original buyer and the overbidder

If your offer is the one going to court

Price as if someone will overbid. A low accepted price invites competition at the hearing.
Finish inspections, insurance quotes and loan approval before the hearing, so you can decide on the spot how high to go.
Attend the hearing with your broker, a written maximum and proof of funds for any added deposit.

If you plan to overbid

Find the hearing date and the accepted price in the court file or from the listing broker, and calculate the minimum overbid in advance.
Bring the deposit in the form the court will accept, and a completed local bid form where one exists.
Match the original contract’s terms where you can, since different financing terms need the personal representative’s approval.

For other distressed-property routes, compare distressed property investing and the differences between a foreclosure auction and an REO purchase. Deposit basics for ordinary purchases are in our earnest money guide.

This is general information, not legal advice; talk to a California probate attorney about your situation.

Questions people ask

How much do you have to overbid in probate court in California?

The first overbid must be at least 10% more on the first $10,000 of the accepted price and 5% more on the rest. On a $650,000 sale, that’s $683,000. The judge sets how later bids increase.

How much deposit does a probate overbidder need?

Sonoma County’s mandatory form PR-14 requires a deposit of 10% or more of the bid. Other counties set their own rules, so check the local probate rules where the estate is pending.

Can I get a loan to buy a probate property at a confirmation hearing?

Yes, but if the accepted sale is for cash and your bid is on credit, or on different credit terms, the court can’t consider it unless the personal representative says it is acceptable (Probate Code 10311(d)).

Can the original buyer raise its offer at the hearing?

Section 10311 doesn’t bar it; the court confirms to the highest qualifying offer from a responsible person. Ask the estate’s attorney how the assigned department handles bidding between the original buyer and overbidders.

Does a probate seller give a Transfer Disclosure Statement?

Usually not. Civil Code 1102.2 exempts sales ordered by a probate court and fiduciary sales in estate administration from that article. Ask what reports the estate has and inspect before the hearing.

What happens if the winning bidder can’t close?

The court can vacate the confirmation and order a resale. The defaulting buyer is liable for any price shortfall, the expenses caused and other consequential damages (Probate Code 10350).

Who pays the buyer’s broker in a probate overbid?

The estate, out of the commission the court allows. When different brokers represent the original and winning buyers, Probate Code 10165 divides it.

If you’re bidding on an estate property in Sonoma, Napa, Marin or another county we serve, we can review the court file, run the overbid numbers and represent you at the hearing. Start with Diamond’s probate and trust sales services.

Sources & notes

Last reviewed October 2026 by Matthew Martinez.