Updated August 25, 2026. Quick answer: Two things get assumed about selling a house out of an estate. That the commission is whatever the listing agreement says. And that because inheriting is not taxed, selling the inherited house is not taxed either. In a court-confirmed California sale the commission is what the court finds reasonable, the contract caps it rather than sets it, and the estate owes nothing at all unless the sale is confirmed and consummated. The exclusive listing the representative can grant runs 90 days. And the transfer-tax statutes exempt the transfer at death and tax the estate’s sale on the full price.
The commission is the court’s finding, not the contract’s
Section 10161 puts the number in the judge’s hands: “the fee, commission, or other compensation of an agent or broker in connection with a sale of property shall be the amount the court, in its discretion, determines to be a reasonable compensation for the services of the agent or broker to the estate”. The contract does not set that amount. It caps it: “If the agent or broker has a contract with the personal representative, the amount of the compensation of the agent or broker in connection with the sale of property shall not exceed the amount provided for in the contract.”
And nothing is owed on effort. “The estate is not liable to an agent, broker, or auctioneer under a contract for the sale of property or for any fee, commission, or other compensation or expenses in connection with a sale of property unless the following requirements are satisfied” – an actual sale, court confirmation where it is required, and consummation. A listing that produces a buyer who does not close produces no claim on the estate.
What happens to the commission when someone overbids
The statute splits it, and the split is not the ordinary one. Where a bidder who was not represented is beaten at the hearing by a bidder who was, “the compensation of the agent or broker who procured the purchaser to whom the sale is confirmed shall not exceed one-half of the difference between the amount of the bid in the original return and the amount of the successful bid.” The overbidder’s agent is paid out of the increase, capped at half of it.
Where the original bid did come through an agent, section 10165 divides it: “The agent or broker who procured the purchaser to whom the sale is confirmed shall be paid one-half of the compensation on the amount of the original bid and all of the compensation on the difference between the original bid and the amount for which the sale is confirmed.” The estate’s total does not rise because two agents are involved. It is divided. Which is the point – the overbid mechanism is measured without regard to commission at all.
Ninety days, not six months
The exclusive right to sell that the personal representative may grant is bounded by statute: “The power to grant an exclusive right to sell property for a period not to exceed 90 days.” Extensions to the same broker run in further 90-day pieces, and once the original and the extensions together exceed 270 days, the representative has to give notice of proposed action to the beneficiaries.
A six-month exclusive listing signed on a probate property is therefore not the representative simply exercising an ordinary power. Whether a longer term binds anyone is a question for the court and the beneficiaries, and it is a reasonable thing for a beneficiary to ask about before it is signed rather than after.
The appraisal has a statutory price
The probate referee’s compensation is “A commission of one-tenth of one percent of the total value of the property for each estate appraised, subject to Section 8963.” Section 8963 supplies the collar: “the commission of the probate referee shall in no event be less than seventy-five dollars ($75) nor more than ten thousand dollars ($10,000) for any estate appraised”.
| Total value appraised | One-tenth of one percent | Commission after the collar | Which rule governs |
|---|---|---|---|
| $40,000 | $40 | $75 | floor applies |
| $75,000 | $75 | $75 | rate applies |
| $300,000 | $300 | $300 | rate applies |
| $900,000 | $900 | $900 | rate applies |
| $4,000,000 | $4,000 | $4,000 | rate applies |
| $10,000,000 | $10,000 | $10,000 | rate applies |
| $18,000,000 | $18,000 | $10,000 | ceiling applies |
The collar is statutory: not less than $75 and not more than $10,000 for any estate appraised, so the floor governs below $75,000 of appraised property and the ceiling above $10,000,000. The statute also lets the court allow more than the ceiling on the referee’s own application.
The collar is where the arithmetic stops being a percentage. Below about $75,000 of appraised property the floor governs, and above $10,000,000 the ceiling does, so on a large estate the independent appraisal costs a smaller and smaller fraction of what it is valuing.
Inheriting is exempt. Selling is a sale.
The transfer-tax statutes say exactly what people assume – and only that. California exempts the death transfer where realty passes “if by reason of such inter vivos gift or by reason of the death of any person, such lands, tenements, realty, or interests therein are transferred outright to, or in trust for the benefit of, any person or entity”. Washington’s definition does the same by excluding “A transfer by gift, devise, or inheritance.” from the meaning of a sale.
Neither exempts what the estate does next. When the estate conveys to a buyer, that is a sale, and it is taxed on the consideration like any other.
| Jurisdiction | Statutory rate | Section | $300,000 sale | $600,000 sale | $1,200,000 sale | $2,500,000 sale |
|---|---|---|---|---|---|---|
| California, county rate | $0.55 per $500 of consideration, or fraction of it | Rev. & Tax. Code § 11911(a) | $330 | $660 | $1,320 | $2,750 |
| Florida, documentary stamp | 70 cents per $100 of consideration | Fla. Stat. § 201.02(1)(a) | $2,100 | $4,200 | $8,400 | $17,500 |
| Washington, state excise | 1.1% then 1.28% then 2.75% then 3.0% across the statutory bands | RCW 82.45.060(1)(b) | $3,300 | $6,780 | $14,460 | $45,800 |
Three jurisdictions read at their own statutes. California cities may add their own tax at half the county rate by ordinance and none is included above. Washington’s statute directs its department of revenue to adjust the band thresholds every fourth year, so these are the statutory thresholds rather than a current published schedule. Local recording fees are not transfer taxes and are not here.
Three jurisdictions, read at their own statutes. In California a city may impose its own tax on top of the county’s at half the county rate, set by ordinance – we read the enabling statute, not any city’s ordinance, so no city rate appears above. Washington’s own statute directs its department of revenue to adjust the bracket thresholds every fourth year, so the thresholds quoted are the statutory ones and the published current ones may differ.
The deduction the estate can take once
Selling costs are deductible, and there is a rule about which return gets them. Section 642(g): “Amounts allowable under section 2053 or 2054 as a deduction in computing the taxable estate of a decedent shall not be allowed as a deduction (or as an offset against the sales price of property in determining gain or loss) in computing the taxable income of the estate or of any other person” unless a statement and a waiver are filed.
Read the parenthesis: an offset against the sales price is exactly what a commission and closing costs are. So the same commission cannot both reduce the taxable estate and reduce the gain on the sale. Which side is better is arithmetic on a particular estate’s numbers, and it is a choice, not an accident – which means it is worth making deliberately, in the year the sale happens.
What this page does not settle
This page sets out what the statutes say an estate pays a broker, a referee and a transfer-tax authority. It publishes no commission rate, because no statute read here sets one.
Three states’ transfer-tax statutes are quoted here. There are fifty-one jurisdictions and we read three, so the table is an illustration of the structure, not a fifty-state answer.
The California commission rules are the rules for a court-confirmed sale. A sale under full independent authority is not confirmed by the court, and the court does not fix the commission in that case.
No commission percentage appears anywhere on this page, because no statute we read sets one and the only percentages we found published are one company’s description of the market.
City transfer taxes sit on top of county ones in California and are set by ordinance. We read the enabling statute, not any city’s ordinance, so no city rate appears here.
The double-deduction rule is quoted from the statute. Which side of it is better for a particular estate is a computation on that estate’s own numbers and is not attempted here.
Sources
- 26 U.S.C. § 642(g) — https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title26-section642&num=0&edition=prelim
- Cal. Prob. Code § 10160 — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=10160.
- Cal. Prob. Code § 10161(a) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=10161.
- Cal. Prob. Code § 10161(c) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=10161.
- Cal. Prob. Code § 10162(a) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=10162.
- Cal. Prob. Code § 10165(b) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=10165.
- Cal. Prob. Code § 10538(a)(1) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=10538.
- Cal. Prob. Code § 8961(a) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=8961.
- Cal. Prob. Code § 8963(a) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=8963.
- Cal. Rev. & Tax. Code § 11911(a) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=RTC§ionNum=11911.
- Cal. Rev. & Tax. Code § 11930 — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=RTC§ionNum=11930.
- Fla. Stat. § 201.02(1)(a) — http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0201/Sections/0201.02.html
- Wash. Rev. Code § 82.45.010(3)(a) — https://app.leg.wa.gov/RCW/default.aspx?cite=82.45.010
- Wash. Rev. Code § 82.45.060(1)(b)(i) — https://app.leg.wa.gov/RCW/default.aspx?cite=82.45.060
Related: Court Confirmation and the Overbid · Cash Offer vs Listing an Inherited House · what the representative is paid, on a separate schedule · court costs, state by state.
General information drawn from the primary statutes and published company pages named above, not legal, tax or financial advice. Statutes are amended and company terms change; the figures here are what each source said on the date above, and the section or page is linked so you can check it.