What additional protections should a buyer’s agent take when acting for the buyers in terms of an estate sale?
Authority to Act (documentation)
First, the agent should determine “who” is the person with signing authority on behalf of the estate.
The agent should receive a copy of their authority. We are looking for either of two documents:
- Certificate of Appointment of Estate Trustee with Will Annexed,
- Certificate of Appointment of Estate Trustee without a Will.
In the first case, there was a Will, in the second case, the deceased died without a Will. At this point, since you have a copy of the Court Order, you don’t need to inquire any further into the matter of “authority”.
On rare occasions, someone will be acting under a Power of Attorney. Be aware of the fact that 99% cease on death, but some survive.
In business matters, if A purchases B’s property, and pays B the full purchase price, but obtains a limited power of attorney to sign further documents related to the transaction on B’s behalf, then, this type of power of attorney, if properly drafted should survive. Since they are rare, in all such cases, seek a legal opinion about the validity of this document.
Proceeding Without Documentation
An Executor has authority to act from the Will. So, they can “act” as a agent of the deceased, from the moment of death. There’s no gap in time.
But, how do you know that? The problem is that you don’t. Did that person have a valid Will, was it the last Will, is the a likelihood that the Will might be contested, is the estate financially viable? You won’t know the answer to these questions until “probate”, now referred to as an application for a certificate of appointment of an Estate Trustee. This could take months.
In the meantime, the person so designated can engage contractors, enter into agreements on behalf of the estate, list the property, sell the property pursuant to an agreement of purchase and sale, just not sign the closing documents.
To be safe, what can the buyer’s agent do? First, inquiries should be made of the listing agent to determine whether there are any potential issues. In this regard, a search can be made of any publicized obituary. It might have a recent published obituary making reference to the deceased family. Search using proper names etc. ie. “John Robert Smith”. Is the executor noted there? Is there an ex-wife? Is there more than one ex-wife, are there any children, grandchildren, brothers, sisters, parents? They may all have a right to contest the Will. Look through to see any potential issues of conflict. Then, of course, ASK the question. It’s not rude, it’s “due diligence”. And, the listing agent should have the answer, if they are doing their own homework. They shouldn’t be offended, it’s not personal. At this point, they are requesting that you place your faith in them that they will ultimately get a Court Order. So, this is just “business”.
When do they expect the Court Order? When was the application made? This will influence the timing of the closing.
If the deceased died without a Will, there’s nothing you can do. No one has authority to act. So, just wait, or in the meantime express your interest in the property.
Vesting after 3 Years
The property will vest in the beneficiaries three years after the date of death, if no transfer has been made. Here, the proper people to sign the listing, the agreement and the ultimate conveyance would be the beneficiaries directly. This is fraught with legal issues, so it would be best to be guided by legal advice at this point, and failing to do so could constitute professional negligence.
Anytime the death took place more than 3 years ago, this should put the agents “on inquiry”.
Brian Madigan LL.B., Broker