Commissions in Probate Sales: How the Court Treats Them

In a California probate sale that goes to a confirmation hearing, the court, not the listing agreement, sets the agent's commission. Probate Code section 10161 lets the court allow "a reasonable compensation" in its discretion, never more than the contract provides, and the estate owes nothing unless the sale is actually made, confirmed and closed. When the house is overbid, sections 10162 through 10165 decide which agent is paid and on what amount, and several county courts add their own ceilings by local rule.

This article describes how the court treats commissions so an administrator and the heirs can follow the numbers on the court forms. It is not advice on hiring or paying an agent; those questions go to the estate's attorney, who prepares the petition.

The starting rule: no sale, no confirmation, no commission

Section 10160 says the estate is not liable to an agent or broker for any commission or fee unless three things happen: an actual sale is made, the court confirms or approves it if confirmation is required, and the sale is consummated. Section 10150 repeats the point for listing contracts: a contract with a broker binds the estate only up to the amount the court allows, and creates no liability unless the court confirms the sale.

Section 10160.5 adds two cases where the estate owes nothing at all: when the agent or broker, directly or indirectly, is the purchaser, and when the agent representing the purchaser "has any interest in the purchaser." San Diego's Local Rule 4.13.5 requires the court to be told whether the broker is, or has any interest in, the buyer, and the report of sale form asks whether the broker who procured the buyer is "not buying for his or her account."

How the court sets the amount

Section 10161 has three parts:

• (a) With or without a contract, the court allows the amount it decides is reasonable compensation for the services to the estate.
• (b) An agent without an exclusive right to sell is paid only if they produced the original bid returned to the court, or procured the buyer who wins with a higher bid at the hearing.
• (c) If there is a contract, the compensation cannot exceed what the contract says.

The court can fix the amount at the confirmation hearing or later, on its own motion or on request, under section 10313(b). The paper trail sits on two Judicial Council forms. On the Report of Sale (DE-260), item 5 states whether the sale is without a broker, whether there is a written exclusive or nonexclusive contract, who procured the buyer and how the commission is to be divided. On the Order Confirming Sale (DE-265), item 12 either says "No commission is payable" or approves a commission from the proceeds in a stated amount, to be paid as the order specifies.

Local ceilings in three counties

The statute says "reasonable." Some courts write down what they treat as reasonable:

• Los Angeles County, Local Rule 4.39(d): the court will not permit a commission over five percent for improved real property unless exceptional circumstances justify it, and up to ten percent for raw land.
• San Diego County, Local Rule 4.13.5: a reasonable commission is set at confirmation and paid from the proceeds; the court may consider community practice, and may not allow more than five percent on improved property or ten percent on unimproved property without good cause. Rule 4.13.4 adds that no specific percentage is approved as part of an exclusive listing; all commissions are set at the hearing.
• San Bernardino County, Local Rule 20-806: absent special circumstances, no more than six percent when a broker procured the bid presented for confirmation, and no more than three percent when no broker procured it. For property with an appraised value or sales price of ten thousand dollars or less, or undeveloped land, the ceilings are ten and five percent.

These are ceilings the court applies, not rates anyone has to accept. Which court hears each county's cases is in which superior court handles your county's probate.

The exclusive listing needs the court's permission

Under section 10150(c), a listing that gives an agent the exclusive right to sell may run no longer than 90 days, and the personal representative must first get the court's permission by showing necessity and advantage to the estate. Each extension of up to 90 days needs permission again. San Diego's rule 4.13.4 says a representative with no authority or limited authority under the Independent Administration of Estates Act must not sign an exclusive listing without prior court approval. Whether a listing is exclusive changes the overbid math below, so the attorney checks it first.

What an overbid does to the commission

When another buyer wins at the hearing, two agents may claim a share. The code sorts it out by who represented whom.

Situation at the hearingWhat the code allowsSection

Original bidder had no agent; an overbidder represented by an agent who holds no exclusive listing wins

That agent is capped at half the difference between the original bid and the winning bid

10162(a)

No exclusive listing, buyer's agent produced the bid, sale confirmed to that buyer

Commission on the full confirmed amount

10162.3

Exclusive listing, unrepresented or listing-agent buyer, confirmed to that buyer

Listing agent paid on the full confirmed amount

10162.5(a)

Exclusive listing, overbidder with no bona fide agent wins

Listing agent paid on the original bid only

10162.5(b), 10164

Exclusive listing, another agent's buyer confirmed

Commission on the full amount, split as the agents agreed, or equally on the original bid with the other agent taking all of it on any increase

10162.7

Overbidder brought by a bona fide agent, original bid brought by another agent or unrepresented with an exclusive listing

Winning agent gets half on the original bid plus all on the increase; the other half goes as section 10165(c) lists

10165

Section 10162.6 handles a listing contract that names a buyer for whom no commission is owed, and section 10163 covers an increased bid when the original buyer had no agent. San Diego's rule 4.13.13 makes it counsel's duty to compute the commission under section 10164 or 10165 and report any split between brokers for the court's minute order.

Commissions do not count in the overbid

Section 10311(e) tells the court to disregard any commission owed under a contract, and any bid condition requiring part of the bid to go to an agent, when it measures the original bid and a higher offer. Section 10166 goes further: a bid that says the representative must pay part of it to an agent does not control, the court allows only what the article permits, and the bidder is still bound if the court allows less. The overbid increment itself is set by section 10311 and worked out on DE-260 item 10; how it plays out in the courtroom is in what a confirmation and overbid does to a cash offer.

On the notice of proposed action track

A representative with full authority can often sell without a hearing. The commission does not disappear from view: section 10585 requires the notice of proposed action to state "the amount of, or method of calculating, any commission or compensation" paid to an agent, and Los Angeles Local Rule 4.58(a) repeats that the notice must include the commissions payable to the brokers. Heirs who receive the notice see the commission before the sale happens. When an heir objects and the sale moves to the court, the rules above apply.

What this means when the buyer comes without an agent

Some cash buyers make offers without an agent. If no broker procured the original bid and there is no exclusive listing, DE-260 item 5a, "Sale without broker," may be the box that applies, and the commission discussion is short. If an overbidder arrives with an agent and wins, that agent's pay can be capped at half the increase under section 10162. If there is an exclusive listing, the listing agent's share follows sections 10162.5 and 10164. The administrator does not have to work this out alone; the attorney does it for the petition.

Offers that come through Mr. Cali Offers are made by independent buyers and investors, not by Mr. Cali Offers itself. Whoever the buyer is, the attorney will want the written offer to say whether a broker is involved, so item 5 can be completed. The other pieces of the court file are in the pillar on court confirmation, overbid and cash that holds and in the probate sales knowledge center.

What this looks like in practice

These are the kinds of files that come in, described without names or figures.

• A Rancho Cucamonga estate with an exclusive listing approved by the court. A direct cash offer comes in, and the attorney reads rule 20-806 and section 10162.5 to see what the listing agent is owed if the sale is confirmed or overbid.
• An administrator with limited authority and no listing who wants to know what happens if an agent's buyer overbids at the hearing. The answer is in section 10162(a), and the offer sheet shows the net with and without that outcome.
• A Claremont executor with full authority preparing a notice of proposed action, who wants the commission line and the price to read clearly for heirs out of state.

When a listed sale nets the estate more

A commission is a cost, but it is not the whole comparison. A house that shows well, would finance easily and would draw owner-occupants can bring enough more on the open market to net the estate more after the commission, the preparation and the carrying time. Each estate file gets two numbers for that reason: the as-is cash offer and an open-market read, which is a preliminary estimate, not an appraisal, with the commission shown as a line item. When listing nets more, the written recommendation says so and introduces a designated local expert. To see both, see how probate sale offers are prepared for the court's file or call (909) 498-3977. There is no cost and no obligation to get the two numbers and the written report.

Sources

• California Probate Code section 10150 (contracts with brokers; exclusive right to sell), copy read on california.public.law, accessed November 6, 2026
• California Probate Code sections 10160 and 10160.5 (when the estate is liable for a commission), copies read on california.public.law and california.public.law, accessed November 6, 2026
• California Probate Code section 10161 (court fixes reasonable compensation), copy read on california.public.law, accessed November 6, 2026
• California Probate Code sections 10162, 10162.3, 10162.5, 10162.6 and 10162.7 (compensation by who procured the buyer), copies read on california.public.law, accessed November 6, 2026
• California Probate Code sections 10163, 10164, 10165 and 10166 (commissions on increased bids; bid conditions), copies read on california.public.law, accessed November 6, 2026
• California Probate Code sections 10311 and 10313 (overbid; confirmation and fixing compensation), copies read on california.public.law and california.public.law, accessed November 6, 2026
• California Probate Code section 10585 (contents of a notice of proposed action), copy read on california.public.law, accessed November 6, 2026
• Judicial Council of California, forms DE-260 (Report of Sale) and DE-265 (Order Confirming Sale of Real Property): courts.ca.gov and courts.ca.gov, accessed November 6, 2026
• Superior Court of California, County of Los Angeles, Local Rules Chapter Four (Probate), rules 4.39 and 4.58: lacourt.ca.gov, accessed November 6, 2026
• Superior Court of California, County of San Diego, Local Rules Division IV (Probate), rules 4.13.4, 4.13.5 and 4.13.13: sdcourt.ca.gov, accessed November 6, 2026
• Superior Court of California, County of San Bernardino, Local Rules of Court, rule 20-806 (broker's commissions): sanbernardino.courts.ca.gov, accessed November 6, 2026

Mr. Cali Offers is not a law firm and does not list houses; the estate's attorney computes and requests any commission. Cash offers come from independent buyers and investors who buy for their own account and may resell for profit; a cash offer is generally below what the open market would bring. Any value shown is a preliminary estimate, not an appraisal. Nothing here is legal, tax or financial advice.