Michael Stephens Probate Real Estate Specialist Oakland Berkeley Albany Piedmont

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Probate Commission Chart

September 14, 2006 (revised)

Copyright© 2006 CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.). Permission is granted to C.A.R. members only to reprint and use this material for non-commercial purposes provided credit is given to the C.A.R. Legal Department. Other reproduction or use is strictly prohibited without the express written permission of the C.A.R. Legal Department. All rights reserved.

EXCLUSIVE RIGHT TO SELL LISTING APPROVED BY THE SUPERIOR COURT WITHIN THE PROVISIONS OF PROBATE CODE SECTION 10150(c).
ORIGINAL OFFER/BID PRODUCED BY	ENTITLEMENT TO COMMISSION IF ORIGINAL OFFER/BID IS CONFIRMED	SUCCESSFUL PURCHASE ON INCREASED BID PRODUCED BY	ENTITLEMENT TO COMMISSION IF INCREASED BID IS CONFIRMED
LISTING BROKER	LISTING BROKER: Full commission as allowed on actual amount of sale confirmed. ( Cal. Prob. Code § 10161(b)(1).)*	LISTING BROKER	LISTING BROKER: Full commission as allowed on actual amount of sale confirmed. (Cal. Prob. Code § 10162.5(a)(2).)*
		OTHER BROKER	LISTING BROKER: ½ commission rate as allowed on amount of ORIGINAL bid. (Cal. Prob. Code §§ 10164 (c), 10165(c)(1).)* OTHER BROKER: ½ commission rate as allowed on amount of ORIGINAL bid PLUS FULL commission rate as allowed on difference between ORIGINAL bid and SUCCESSFUL bid on which sale is confirmed. (Cal. Prob. Code § 10165(b).)*
		PERSONAL REPRESENTATIVE	LISTING BROKER: Full commission as allowed on actual amount of ORIGINAL bid. (Cal. Prob. Code §§ 10162(b), 10164(b).)*
OTHER BROKER	LISTING BROKER: ½ of commission rate as allowed on full amount of sale unless manner of division is specified in prior agreement with Other Broker. OTHER BROKER: ½ of commission rate as allowed on full amount of sale unless manner of division is specified in prior agreement with Listing Broker. (Cal. Prob. Code § 10162.7, 10164(c).)*	LISTING BROKER	LISTING BROKER: ½ of commission rate as allowed on amount of ORIGINAL bid and full rate as allowed on difference between the ORIGINAL bid and the amount for which the sale is confirmed. Prob. C. §§ 10165(a), 10165(b).* OTHER BROKER: ½ of commission rate as allowed on amount of ORIGINAL bid unless manner of division is specified in prior agreement with Listing office. (Cal. Prob. Code §§ 10165(c)(3), 10165(c)(5).)*
		OTHER BROKER	LISTING BROKER: ½ of commission rate as allowed on amount of original bid. (Cal. Prob. Code § 10162.7(b).)* OTHER BROKER: ½ of commission rate as allowed on amount of original bid PLUS FULL commission rate as allowed on difference between ORIGINAL bid and SUCCESSFUL bid on which sale is confirmed. (Cal. Prob. Code § 10162.7(b).)*
		PERSONAL REPRESENTATIVE	LISTING BROKER: ½ of commission rate as allowed on amount of ORIGINAL bid unless manner of division is specified in prior agreement between listing office and cooperating office. (Cal. Prob. Code § 10164(c).)* (No Commission on overbid amount). OTHER BROKER: ½ of commission rate as allowed on actual amount of ORIGINAL bid or divided as specified in prior agreement between Listing office and Other Broker. (Cal. Prob. Code § 10164(c).)* (No Commission on overbid amount).
		THIRD BROKER	½ of commission rate as allowed on ORIGINAL bid to be divided equally between Listing Broker and Other Broker who procured ORIGINAL bidder (unless manner of division is specified in prior agreement between them) and ½ of commission rate on ORIGINAL bid to Third Broker who procured successful increased bid as follows: LISTING BROKER: ¼ of commission rate as allowed on amount of ORIGINAL bid, unless manner of division is specified in prior agreement with Other Broker. (Cal. Prob. Code § 10165(c)(3).)* OTHER BROKER (WITH ORIGINAL BID): ¼ of commission rate as allowed on ORIGINAL bid unless manner of division is specified in prior agreement with listing office. (Cal. Prob. Code § 10165(c)(3).)* THIRD BROKER (WITH SUCCESSFUL INCREASED BID): ½ of commission rate as allowed on amount of ORIGINAL bid PLUS FULL commission rate as allowed on difference between ORIGINAL bid and SUCCESSFUL bid on which sale is confirmed. (Cal. Prob. Code § 10165(b).)*
PERSONAL REPRESENTATIVE	LISTING BROKER: Full commission as allowed on actual amount of sale confirmed. (Cal. Prob. Code § 10162.5(a)(1).)*	LISTING BROKER	LISTING BROKER: Full commission as allowed by court on ACTUAL amount of sale confirmed. (Cal. Prob. Code §§ 10162(b), 10163(a).)*
		OTHER BROKER	LISTING BROKER: ½ of commission rate as allowed on ORIGINAL bid. (Cal. Prob. Code § 10165(c )(4).)* OTHER BROKER: ½ of commission rate as allowed on ORIGINAL bid, PLUS FULL commission rate as allowed on difference between ORIGINAL bid and SUCCESSFUL bid. Prob. C. § 10165(b); not to exceed ½ of difference between ORIGINAL bid and successful bid amounts. (Cal. Prob. Code § 10162.)*
		PERSONAL REPRESENTATIVE	LISTING BROKER: Full commission as allowed on actual amount of ORIGINAL bid. (Cal. Prob. Code § 10162.5(b)(2).)*
NO EXCLUSIVE RIGHT TO SELL LISTING
ORIGINAL OFFER/BID PRODUCED BY	ENTITLEMENT TO COMMISSION IF ORIGINAL OFFER/BID IS CONFIRMED	SUCCESSFUL PURCHASE ON INCREASED BID PRODUCED BY	ENTITLEMENT TO COMMISSION IF INCREASED BID IS CONFIRMED
BROKER	BROKER: Full commission as allowed on actual amount of sale confirmed. (Cal. Prob. Code § 10162.3.)	BROKER	BROKER: Full Commission as allowed on actual amount of sale confirmed. (Cal. Prob. Code § 10162.3.)
		OTHER BROKER	BROKER (WITH ORIGINAL BID): ½ of commission rate as allowed on the amount of the ORIGINAL bid. (Cal. Prob. Code § 10165(c)(2).) OTHER BROKER (WITH SUCCESSFUL INCREASED BID): ½ of commission rate as allowed on amount of ORIGINAL bid PLUS FULL amount on difference between ORIGINAL bid and SUCESSFUL bid. (Cal. Prob. Code § 10165(b).)
		PERSONAL REPRESENTATIVE	BROKER: Full rate of commission as allowed on actual amount of ORIGINAL bid returned for confirmation. (Cal. Prob. Code § 10164(b).)
PERSONAL REPRESENTATIVE	NONE PAID	BROKER	BROKER: May receive full commission as allowed on actual amount of sale confirmed but compensation cannot exceed ½ of the difference between amount of ORGINAL bid and amount of SUCCESSFUL bid. (Cal. Prob. Code § 10162(a), 10163(b).)
		PERSONAL REPRESENTATIVE	NONE PAID

Comments:

1. RIGHTS TO COMMISSION: Broker is not entitled to a commission as a creditor of the estate until an actual sale is made, confirmed by the court if required and consummated. (Cal. Prob. Code § 10160.)

2. LOCAL RULES: When a sale is confirmed the court will set the Brokers’ listing commission at a rate not to exceed the rate established by local Rules of Court. Local Rules should be consulted to verify the rate prior to executing the Listing agreement and/or bid contract. (Cal. Prob. Code § 10161(a).)

3. PERSONAL REPRESENTATIVE refers to an Executor or Administrator.

4. COMMISSION MAY NOT EXCEEDthe lesser of the rate in the Listing Agreement or the rate provided in Local Rules. (Cal. Prob. Code § 10161(c).) The court is empowered with discretion to determine what it may consider a “reasonable rate” for the Brokers’ services. (Cal. Prob. Code § 10161(a).)

5. OTHER BROKERand THIRD BROKER refer to licensed real estate brokers without Exclusive Right to Sell Listings.

6. THE AGREEMENTbetween Brokers need not be in writing to be enforceable; however a written agreement is highly recommended. (Cal. Prob. Code § 10168.)

7. LICENSEE PURCHASER: Licensee is not entitled to a commission where the licensee is the purchaser or has any interest in the purchaser. (Cal. Prob. Code § 10160.5.)

*Chart assumes the listing contract does not provide a clause stating that no compensation is due to the Listing Broker if the sale is confirmed to a particular purchaser. If the listing contract contains such a clause and the sale is confirmed to that named purchaser then the Listing Broker is not entitled to any commission and the compensation of any other Broker involved in the sale remains the same as outlined in the above chart. If the sale is confirmed to a purchaser other than that purchaser named in the listing contract, then the Listing Broker’s compensation remains the same as outlined in the above chart. (Cal. Prob. Code § 10162.6.)

The information contained herein is believed accurate as of September 14, 2006. It is intended to provide general answers to general questions and is not intended as a substitute for individual legal advice. Advice in specific situations may differ depending upon a wide variety of factors. Therefore, readers with specific legal questions should seek the advice of an attorney.