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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.

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