Who pays the real estate commission in a probate sale?

The estate pays the real estate commission in a probate sale, as an estate expense deducted from the sale proceeds at closing. Just as in a normal sale where the commission comes out of the seller's proceeds, in a probate sale the commission comes out of the estate's proceeds before the net is distributed to beneficiaries. The executor signs the listing agreement on behalf of the estate, and the commission is paid from the sale closing. In court-confirmation states, the commission amount typically must be disclosed to and approved by the probate court as part of confirming the sale.

How much is real estate commission on a probate sale?

Real estate commission on a probate sale is typically 5-6% of the sale price, split between the listing agent and the buyer's agent — the same general range as a normal sale, and always negotiable. Some court-confirmation states cap or scrutinize the commission. In California, for example, the court can set or approve the commission, and there are rules governing how commission is split when a property is overbid at the confirmation hearing. Since the 2024 NAR settlement, buyer-agent commission is no longer assumed to be paid by the seller in ordinary sales, though in probate the estate often still offers buyer-agent compensation to attract offers. The commission reduces the net proceeds to the estate and therefore to beneficiaries.

How is commission split when a probate property is overbid?

When a probate property is overbid at a court confirmation hearing, commission-split rules vary by state. In California, if the original buyer is represented by an agent and the property is overbid by a different buyer with a different agent, the original listing agent and the successful overbidder's agent split the commission under a specific formula — the original buyer's agent may receive a portion for procuring the original offer that set the floor. The exact split is governed by state law and local court rules. This is one of the more technical areas of probate real estate and is a reason to work with a probate-experienced agent who understands how commission survives an overbid.

Can you negotiate the commission on a probate sale?

Yes — real estate commissions are always negotiable, including in probate sales, and the executor has a fiduciary duty to control estate costs, which includes negotiating a reasonable commission. Because the commission reduces the net to beneficiaries, an executor should treat it as a real cost to minimize. Options include: negotiating a lower listing-side rate; using a flat-fee or discount brokerage for simpler sales; or comparing the net proceeds of a listed sale (after commission) against a cash sale with no commission. That said, an experienced probate agent who prices correctly and closes reliably can be worth a full commission if they net the estate more than a discount agent would. The 2024 NAR commission settlement made commissions more explicitly negotiable across the board.

Is there commission if you sell to a cash buyer directly?

If you sell directly to a cash buyer without a listing agent, there is typically no listing commission — the estate saves the 5-6% that would otherwise be paid. This is one of the financial advantages of a direct cash sale: no commission, no repair costs, and no extended carrying costs. However, some executors still use an agent even for a cash sale to ensure the transaction is handled properly and to demonstrate to beneficiaries that a fair process was followed. If you sell directly, make sure you still get independent confirmation of fair value (an appraisal or CMA) to document that you met your fiduciary duty, since you won't have an agent's marketing process as evidence.

Probate Real Estate Commission Rules: Who Pays & How Much

Q: Does the court have to approve the commission in a probate sale?

In court-confirmation states, yes — the probate court typically must approve the real estate commission as part of confirming the sale. The executor discloses the commission in the sale petition, and the court reviews it for reasonableness before confirming. In independent administration states (Texas, most UPC states, California with full IAEA authority), the executor generally has authority to agree to a customary commission without separate court approval, though the commission is still reported in the estate accounting. Even where court approval isn't required for the sale itself, the commission is an estate expense reflected in the final accounting that beneficiaries and the court can review.

Who Pays the Commission — and Why It Matters to the Executor

The commission comes out of the estate's proceeds, which means it directly reduces what beneficiaries receive. That makes controlling it part of the executor's fiduciary duty.

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Property sells

Buyer pays the purchase price at closing

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Commission deducted
Paid from proceeds at closing, before net

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Net to estate

Remaining proceeds enter the estate account

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Beneficiaries

Receive less by the commission amount

In a probate sale, the executor signs the listing agreement on behalf of the estate — not personally. The commission is paid from the sale proceeds at closing, exactly as in a normal sale where it comes out of the seller's side. The critical difference is the executor's role: unlike an ordinary homeowner spending their own money, an executor is spending the beneficiaries' money and owes them a fiduciary duty to keep estate costs reasonable.

That duty doesn't mean always choosing the cheapest option — it means making a reasoned decision. A skilled probate agent who prices correctly and closes reliably can net the estate more than a discount broker, even after a full commission. But the executor should treat the commission as a real cost to be justified, document the decision, and — in court-confirmation states — be prepared to have the court review it. The FTC's guidance on real estate transactions and your state's real estate commission are useful references on standard practices.

Probate Commission Calculator

See how commission affects the net proceeds to the estate — and compare a listed sale against a commission-free cash sale.

🧮 Commission & Net Proceeds Calculator

Enter the sale price and commission rate to see the estate's net and the cost of commission.

Listed sale price ($)

Total commission rate (%)

Est. repairs to list-ready ($)

Cash offer to compare ($)

Court Approval of Commission: Confirmation vs. Independent

Whether the court must approve the commission depends on your state and the type of administration.

Court-Confirmation States

Commission disclosed & approved by court

In states requiring court confirmation of real estate sales (California without full IAEA authority, New York, Ohio, and others), the executor discloses the commission in the petition for confirmation, and the court reviews it for reasonableness before approving the sale.

The court can question a commission it considers excessive. Standard customary rates are generally approved without issue, but unusual arrangements or above-market rates may be scrutinized. The commission approval is part of the same hearing that confirms the sale.

This oversight protects beneficiaries — but it also means the executor should agree only to a commission they can justify to the court as reasonable.

Independent Administration States

Executor agrees; reported in accounting

In independent administration (Texas, most UPC states, California with full IAEA authority), the executor generally has authority to agree to a customary commission without a separate court approval hearing for the commission itself.

The commission is still reported as an estate expense in the final accounting, which beneficiaries and the court can review at closing. An executor who agreed to an unreasonable commission could still face objections from beneficiaries reviewing the accounting.

More autonomy means more responsibility — the executor should still document that the commission was reasonable and negotiated in the estate's interest.

Not sure which applies to your estate? Whether a sale needs court confirmation is the same question that determines the overbid process and the sale timeline. See selling during probate — rules by state → for a state-by-state breakdown of confirmation vs. independent administration.

How Commission Works When a Property Is Overbid

In court-confirmation states, a property can be overbid at the hearing — and the commission split gets complicated when the winning buyer has a different agent than the original buyer.

⚖️ Overbid commission split (California example)

The original buyer's agent may still earn a portion after an overbid

When an accepted offer is overbid by a new buyer at the confirmation hearing, the question arises: who gets the buyer-side commission — the original buyer's agent (who found the offer that set the floor) or the overbidder's agent (who brought the winning buyer)?

California addresses this by statute. Under the rules governing probate sales, when a successful overbidder is represented by an agent, the original buyer's agent (whose offer established the minimum) may be entitled to a portion of the buyer-side commission for procuring the offer that set the confirmation floor, with the balance going to the overbidder's agent. The exact allocation follows the statutory formula and local court practice.

The listing agent's commission is generally unaffected by the overbid — they still earn the listing side on the final (higher) sale price. And because the overbid raises the sale price, the total commission dollar amount usually increases, even as the per-side split shifts.

Why this matters to the executor: a higher overbid price means more to the estate and a larger total commission. The net effect is still positive for the estate — a $30,000 overbid at a 5% total commission costs $1,500 more in commission but adds $30,000 to the sale price, a $28,500 net gain to the estate.

The 2024 NAR Settlement and Probate Commissions

📋 Industry change — effective 2024

Buyer-agent commission is now explicitly negotiable and separately disclosed

The 2024 National Association of Realtors (NAR) settlement changed how buyer-agent commissions are handled in U.S. real estate. Previously, the seller typically paid both the listing and buyer-agent commissions, with the buyer-side commission advertised on the MLS. Under the settlement, offers of buyer-agent compensation can no longer be posted on the MLS, and buyer-agent compensation is negotiated more explicitly and separately. The change stemmed from federal antitrust scrutiny of longstanding commission practices.

What this means for probate sales: the estate is no longer automatically presumed to pay the buyer's agent. However, in practice, estates often still offer buyer-agent compensation to attract the widest pool of offers — especially important for as-is probate properties that already face a narrower buyer market. The key change is that this is now an explicit, negotiated decision rather than an assumed cost.

For executors, the practical takeaway is that commission structures are more transparent and negotiable than ever. Discuss with your agent exactly what commission the estate will pay on both the listing and buyer sides, get it in writing, and — in confirmation states — be ready to disclose the arrangement to the court. Related: how to list a probate property →

How Commission Fits with Other Probate Costs (California Example)

In statutory-fee states like California, the agent commission is separate from — and on top of — the executor and attorney statutory fees. Executors should understand the full cost stack.

Executor's statutory fee

Set by Cal. Prob. Code §10800 — a percentage of the gross estate (4% of first $100K, 3% of next $100K, etc.). Separate from the agent commission.

Attorney's statutory fee

The estate attorney earns the same statutory schedule as the executor under Cal. Prob. Code §10810 — again separate from and in addition to the agent commission.

Real estate agent commission

5–6% of the property sale price, paid to the agent(s), separate from the statutory fees above. This is the commission this page covers.

Court, appraisal, and closing costs

Filing fees, the probate referee's appraisal fee, title/escrow costs, and other administration expenses — all separate line items reducing the net estate.

The commission is only one of several costs. In a statutory-fee state, the agent commission, the executor's statutory fee, the attorney's statutory fee, and court/appraisal/closing costs are all separate. On a $500,000 property, the agent commission alone (5.5%) is $27,500 — and that's before the statutory executor and attorney fees calculated on the whole estate. This full cost stack is why some estates weigh a commission-free cash sale, and why the executor's fee-waiver decision matters. See executor compensation by state →.

How Executors Can Control Commission Costs

Options for reducing commission while still meeting the fiduciary duty to sell competently.

🤝Negotiate the listing rate

Commissions are always negotiable. On higher-value properties especially, listing agents will often accept a reduced rate. Ask — the savings go straight to beneficiaries.

🏷️Consider flat-fee or discount brokerage

For a straightforward, well-priced property in a strong market, a flat-fee or discount broker can save thousands. Weigh against the value of a full-service probate specialist.

💵Compare a cash sale (no commission)

A direct cash sale eliminates the commission entirely. Compare the cash offer against the listed price minus commission, repairs, and carrying costs — the net is often closer than it appears.

📊Focus on net, not gross

The right metric is net proceeds to the estate, not the headline sale price. A higher gross with high commission and repair costs can net less than a lower gross with none.

📝Get everything in writing

Document the commission agreement, including buyer-side compensation post-NAR-settlement. Written terms protect you when beneficiaries or the court review the accounting.

⚖️Document your reasoning

Keep a record of why you chose the agent and commission you did. Demonstrating a reasoned, estate-interested decision is your protection against fiduciary objections.

Frequently Asked Questions

Yes — the real estate agent's commission and the executor's compensation are entirely separate. The agent commission (typically 5–6% of the property sale price) is paid to the licensed real estate agent(s) for marketing and selling the property. The executor's fee is compensation for administering the entire estate, set either by statute (in states like California and New York) or by a reasonable-compensation standard. They're paid to different people for different work, and both come out of the estate. In statutory-fee states, the executor's fee is calculated on the whole estate value while the commission applies only to the real estate sale. An executor who happens to also be a licensed agent generally cannot collect both a full executor fee and a full commission without disclosure and often court/beneficiary approval, due to the conflict of interest. Full detail: executor compensation →

This is a conflict of interest that requires careful handling. An executor who is also a licensed real estate agent wanting to earn commission on the estate's property sale is engaging in self-dealing. It's not automatically prohibited, but it requires: full disclosure to all beneficiaries and the court; typically the consent of all beneficiaries; and often court approval. Some states restrict or prohibit an executor from earning a commission on the estate's property, or require them to choose between the executor fee and the commission rather than taking both. Because the risk of a fiduciary-breach claim is high, an executor-agent should get legal advice and explicit approval before proceeding — or refer the listing to another agent to avoid the conflict entirely.

Sometimes — the 2024 NAR settlement made buyer-agent compensation explicitly negotiable rather than automatically paid by the seller. In some transactions the buyer now pays their own agent directly; in others the seller (or estate) still offers buyer-agent compensation to attract offers. For probate sales specifically, estates often still offer to pay the buyer's agent because as-is probate properties already have a narrower buyer pool, and offering buyer-agent compensation keeps the property attractive to the most buyers. The key change is that it's now an explicit, negotiated decision that should be documented in writing and — in confirmation states — disclosed to the court. Discuss the specific structure with your listing agent before signing.

If you sell directly to a cash buyer without a listing agent, there's typically no commission at all — you save the full 5–6%. This is a genuine financial advantage of a direct cash sale, on top of saving repair costs and reducing carrying time. However, protect yourself: because you won't have an agent's marketing process as evidence of a fair-market process, get an independent appraisal or CMA to document that the sale price was fair. This protects you against beneficiary claims that you sold too cheaply. Some executors use an agent even for a cash sale precisely to have that documented process — but if the price is well-supported and disclosed to beneficiaries, a direct commission-free cash sale is legitimate and often nets the estate more. Get a cash offer →

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A direct cash sale means no agent commission, no repairs, and no showings — more of the proceeds stay in the estate for beneficiaries. We buy probate homes as-is in all 50 states and close in 2–3 weeks.

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More on probate real estate costs and process

How to List a Probate Property Complete Sale Guide