We often encounter errors in contracts involving a deceased seller. Unfortunately, the errors often delay, and can even cancel, a property sale. Many people think that a surviving spouse, or personal representative, automatically has the authority to sign a listing agreement or contract to sell property owned by the decedent. This is most definitely not the case, and a very careful analysis must be conducted to determine who has the authority to sign prior to listing the property. Most often, this analysis should be completed by an attorney due to the complexity of the homestead, intestacy and probate laws. The very important first step is to ascertain whether the property at issue was the decedent’s homestead. One may think this an easy task that can be completed by simply contacting the property appraiser to confirm that the decedent claimed homestead exemption for tax purposes. In reality, the legal determination takes into account many other factors and can become surprisingly complex.
If the property was the decedent’s legal homestead, an attorney is most likely needed to verify the proper party to sign a contract for the sale of the property. For instance, if the property was held by the decedent and his/her spouse as husband and wife, the property would pass to the surviving spouse by operation of law as surviving tenant by the entirety provided they remained continuously married to each other during their ownership. In that instance, the surviving spouse should sign the contract and Seller should be listed as “[Name of surviving spouse] as the unremarried spouse of [Name of deceased spouse].” However, if the surviving spouse has since remarried, the new spouse will also likely need to sign, which is commonly overlooked. If there is no surviving spouse and the decedent left the property to a legal heir, then the homestead transfers outside of probate subject to divestment. In that instance, the personal representative would have no authority to sign a contract, and a legal determination of the proper party, which usually would require probate of the estate, must occur. If the property is non-homestead, often the personal representative is the party with authority to sign, and should be listed in the contract as “[Name of Personal Representative], as Personal Representative of [Owner’s name], deceased.
In any event, due to the highly complex nature of probate, homestead and intestacy laws, we would always encourage any person seeking to sell or purchase property owned by a deceased party to contact an attorney prior to signing any contract.
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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