Q How is the listing broker‘s commission established?
A The listing agreement usually specifies the amount of commission as a percentage of the sales price. The court will determine, in its discretion, what is a reasonable commission (Cal. Prob. Code §§ 10150((b), 10161(a)). However, the court may not approve an amount in excess of the maximum percentage established by local court rules. This amount can be determined by contacting the clerk of the probate court of the county in which the estate is being administered.
Local court rules do vary. For example: Los Angeles County Superior Court Rule 10.93 limits commission to 5% except in the case of vacant land; Orange County Superior Court Rule 606.06 limits commission to 6% unless justified by exceptional circumstances.
If a sale is confirmed by the court and subsequently closes, the listing broker has earned the commission specified in the listing contract, not to exceed the maximum percentage allowed by local court rules. The commission, also, may not exceed the amount provided for in the listing contract (Cal. Prob. Code § 10161(c)).
For Example : If the maximum under local rules is five percent and the broker‘s listing contract specifies four percent, the broker is limited to a four percent commission. Conversely, if the commission in the listing contract is six percent and the maximum under local rules is five percent, the listing broker‘s fee is limited to five percent.
Q When does an estate become liable for a commission to the listing broker?
A The estate becomes liable for the listing broker‘s commission only after all three of the following have occurred:
- An actual sale is made;
- The sale is confirmed by the court unless the sale is conducted under IAEA; and
- The “sale is consummated.”
(Cal. Prob. Code § 10160.)
Hence, brokers are never entitled to a commission in a probate sale until the estate receives the purchase price, the deed is transferred to the buyer and a mortgage or deed of trust is taken for payments due in the future (Cal. Prob. Code § 10160 (Law Revision Comm’n Comment)).
Q Can different brokers involved in the sale of estate real property determine how the commission will be divided between them?
A Yes. The court must honor an agreement between brokers concerning the division of a commission (Cal. Prob. Code § 10168). However, the court has discretion to limit the total amount of commission paid by the estate.
Q Does such a commission split agreement between brokers have to be in writing?
A No. Oral agreements between brokers concerning commission splits can be enforceable. However, mere verbal terms are often disputed and difficult to prove. A separate, written commission agreement between the brokers is highly recommended to avoid any misunderstanding.
Q Is an offer of compensation in the Multiple Listing Service (MLS) an enforceable “agreement” between brokers to split commissions?
A Yes. An offer of compensation in a MLS normally creates an enforceable commission agreement between brokers, but only if the cooperating broker is a member of the same MLS (or an MLS with reciprocal privileges) and accepted the offer of compensation relying on the MLS listing. The listing broker may specify in the MLS that the offer of compensation goes only to the successful cooperating office. According to the California Model MLS Rules:
For estate sale or probate listings, the compensation offered through the service under these rules and this section shall be considered an agreement as referred to in California Probate Code Section 10165 and will therefore supersede any commission splits provided by statute when there is no agreement. This section contemplates that estate sale, probate and bankruptcy judges have broad discretion and therefore are not intended as a guarantee of a specific result as to commissions in every probate or bankruptcy sale.
The listing office may also specify the amount of compensation going to the first cooperating office (unconfirmed cooperating broker compensation-“ucb”) if the accepted offer is overbid at the court confirmation hearing. (Cal. Model MLS Rule § 7.15.1.).
Q Can the court, at the confirmation hearing, alter a commission agreement between cooperating brokers?
A If cooperating brokers have entered into a commission agreement, the law mandates that the court honor it (Cal. Prob. Code § 10168). If all brokers agree in court to the terms of a prior oral or written agreement to split a commission, there should be no reason for the court to alter it. An exception however could arise if commission agreement between the brokers exceeds local court rules limiting the commission amount as paid by the estate.
Q Is there a comprehensive summary of rules concerning how much commission a broker earns on the sale of estate real property?
A Yes. The C.A.R. legal article titled California Probate Code Commission Schedule is a chart that specifies the amount of commission a broker is entitled to whether the property is exclusively or not exclusively listed, and when confirmed to the original bidder, or confirmed to an overbidder. The chart also specifies a broker’s amount of commission in the event of a successful bid or overbid as obtained by the estate‘s personal representative.
Q Can a real estate licensee receive a commission when buying estate real property as a principal?
A The Probate Code specifically provides that the estate is not liable for any commission where the listing broker or agent is directly or indirectly the purchaser of the estate property. In addition, the estate is not liable for commission when the selling broker or agent has “any interest in the purchaser” (e.g., financial interest in the purchaser) or is the purchaser. (Cal. Prob. Code § 10160.5). (See Estate of Toy v. Coldwell Banker (1977).)
Q What is the broker‘s recourse when the court fails to award the broker a commission at the confirmation hearing?
A If the broker’s commission is not ordered on the court record at the confirmation hearing, the broker may request it in writing and the court may modify the order to award a commission. If a licensee is present in court at the time of the hearing and fails to ask for a commission, or is not present in court and could have been, the court may choose not to modify the order. (Cal. Prob. Code §§10313(b); 10310(c).)
Q What happens if the broker‘s commission is confirmed by the court but remains unpaid?
A If the estate fails to pay the broker a commission awarded by the court after the escrow has closed, the broker becomes a creditor of the estate. The broker may then institute proceedings to require payment. The court may at any time order an accounting by the personal representative of estate monies received and expended, including data on claims filed or presented to the estate.
It should be noted, however, that the commission is not earned until the sale is fully consummated. Thus, if the buyer defaults, no commission is payable and the broker is not entitled to file a claim against the estate.
Q What happens if there is a dispute between brokers over the agreement to split commission?
A Generally the probate court will not interpret an agreement between cooperating brokers regarding the split of commission. If upon request the court does not specifically split the commission, the cooperating brokers should resolve their dispute through the Board/Association arbitration system like any other commission dispute.